Withers responds to the Charity Commission consultation on its draft social media guidance

The Charity Commission published its draft social media guidance for charities in January, and launched a public consultation on the contents of the guidance which closed in mid-March.

The Commission explained that it has seen through its casework that some charity trustees have limited oversight of their charities’ use of social media, particularly when compared to other aspects of their communication and engagement strategy. The aim of the new guidance is to help trustees improve understanding in this area and to help build trustee confidence, as well as to encourage charities to adopt a social media policy.

Having considered the guidance carefully, the Withers Charity and Philanthropy team has worked with our Media and Reputation Management team to respond to the Commission's consultation on the draft guidance. The key points from our response, submitted earlier this month, are set out below.

Level of oversight charity trustees are required to have over social media

The draft guidance is clear that charity trustees are required to have an oversight of not just the charity's own social media accounts, but the social media accounts of trustees, staff, and volunteers of the charity as well and the content posted by third-parties which may impact the charity's social media account(s).  In our view, this is a wide-ranging and heavy burden for charity trustees, particularly when the personal accounts of staff, trustees, and volunteers are considered to be within the charity's remit (discussed further below). 

The guidance gives clear examples of how trustees should proceed where illegal problematic content is shared. What is less clear is where the content is not illegal but otherwise inappropriate or problematic, and the draft guidance refers to trustees considering a balanced approach (ie, for when corrective statements may be required) but does not elaborate on this point, which does not provide trustees with sufficient clarity to determine how to proceed.  There is concern that whether social media content is inappropriate / problematic is a subjective test, and the guidance does not currently provide enough information for trustees to be confident in such decision-making.

The guidance also suggests that if someone from outside the charity has posted problematic content on the charity's social media page / account, then charities should actively moderate content including considering moderating comments prior to publication (i.e. requiring approval of user-generated content on the charity's own profile). This appears to be at odds with the reality recognised in the draft guidance that social media has become a powerful way for many charities to "promote their work, engage their supporters and campaign for change" as it would inhibit engagement on social media.  In very many cases it will be impractical for a charity to carry out extensive moderation prior to publication.

Personal social media use

One widely-discussed section of the draft guidance suggests that trustee oversight could extend to trustees, employees, or volunteers use of:

•    a personal account where they can be associated with the charity, either through mixing both personal and professional content or because they list their workplace or role; and /or

•    an entirely personal account that could reasonably be linked to the person’s role at the charity

This is a wide-reaching remit and explicitly covers "entirely personal" social media accounts of trustees, staff, and volunteers. This is not reasonable; either for charity trustees to be responsible for or for staff and volunteers to be burdened with.

The result could be that charity trustees, staff, and volunteers are forced to create two social media accounts (and even then, the "entirely personal" accounts may, it seems, still be subject to oversight if the person can reasonably be linked to the charity.  It is not clear from the guidance what is considered to be a "reasonable" link in this context: as currently drafted it would seem to include a scenario where a volunteer uses a personal social media account which references their full name, following which their work with the charity can be discovered by an internet search on a search engine by reference to their name and finding their public LinkedIn page on the basis of their name alone (for example).  This could put people off from wishing to be involved in charity work in a wide range of roles, as well as burdening charities with a heavy and far reaching responsibility for social media activity and accounts only peripherally connected to the charity.

Having a social media policy

The draft guidance focuses heavily on charity trustees using a social media policy to manage issues that arise, and it appears that the guidance pinpoints a social media policy as a key protection for charity trustees. The suggested content for a social media policy is clearly set out and the draft guidance provides relevant information for charity trustees looking to implement such a policy.  For many charities, putting a social media policy in place is an excellent first step to managing the charity's approach and for charities who already have social media policies this guidance will act as a helpful checklist.  For charities that do have a policy in place, this is clearly an important consideration and they should note that there is a burden associated with putting this in place.  Charities should also be aware that reviewing the social media approach (and putting a policy in place) may also trigger a review of other relevant policies (HR, employment) which again could prove burdensome for charity trustees. 

As discussed above, it is also not clear from the draft guidance what 'inappropriate' content is, and definitions of terms such as 'inappropriate', 'harmful' etc will be important elements of a robust social media policy.  The draft guidance makes clear that content which is harmful, inconsistent with the charity's purposes, not in the charity's best interests, or in breach of law, should not be shared or posted. While 'illegal' content, or 'harmful' content, is perhaps more obviously defined by context, what is 'inappropriate' or 'not in the charity's best interests' is subjective test and the guidance does not provide sufficient clarity for trustees on this point.

The guidance suggests that taking independent advice from "a suitably qualified person" can help charity trustees in determining how to approach social media in what the guidance deems "riskier" contexts – however, our view is that clearer guidance should be provided by in the first instance. With many charities facing financial difficulties, spending funds on social media advice may not be an option. Charities should not be placed in a position where they are forced to scale back or avoid social media for fear of doing the wrong thing or because advice is not affordable and where guidance is not sufficiently clear.  

We note that while it is helpful that that guidance suggests that charities have in place a "crisis" policy on responding to incidents, there is not enough detail on what the Commission suggests this should include.  In general, if the Commission's concern in publishing the guidance is that many charity trustees are unfamiliar with the nuance of social media operations, we suggest that the guidance as a whole would benefit from clearer advice (including the use of examples / scenarios) on issues of actual decision-making.

Finally, having a social media policy is not the only thing that charities need to do in order to properly manage social media activity, and the guidance is less clear (and provides less detail) on other issues: for example, the draft guidance states that charities must "ensure you use social media only to help you achieve your charity’s purpose".  The guidance should be clearer on the link required between social media activity and the charity's purpose, particularly in the context of individual's personal accounts.  

Covering the relevant issues for social media use

In addition to providing more detail (including examples) on the factors trustees may need to consider when making decisions regarding social media issues, we also suggested that the guidance take into account both positive and negative elements of social media. The overall tone of the guidance tends to focus on the risks of social media, and in particular the section on 'Engaging on controversial topics'. We suggested that the guidance should ensure that the considerations for trustees include both positive and negative factors, and that positive factors including (for example) the value of social media activity to beneficiaries, donors, and other charity stakeholders, the value of the charity publicly raising difficult issues in furtherance of the charity's purposes, and the possible positive impact on the charity's reputation.

For the text of the draft guidance and updates on the consultation, see here.