Do social workers risk a criminal offense by repeatedly viewing service users’ social media?

Care lawyer and blogger Suesspicious Minds says little-known guidance might mean social workers risk criminal offenses if they repeatedly view the social media profiles of service users

social media
Photo: Mathias Rosenthal/Fotolia

by Suesspicious Minds

On reading a Community Care piece on social workers and social media recently I was troubled by one particular paragraph:

“Debates continue about the impact of social media on the confidentiality of service users, and how information shared publicly on social media should be used by social workers,” says Birchall. “If a social worker visited a home and saw a dangerous person who should not be present in the family home, they would be wrong not to act on this, but if they looked at a service user’s profile on social media and found out the same information there’s a sense that this breaches the service user’s confidentiality, even though the information is public. There are strong feelings on both sides of the argument. It’s a new world and we’re just getting to grips [with it].”

On Twitter I mentioned this kind of action is actually in contravention of the published guidance about members of the state looking at the social media of members of the public (even where the social media is on public settings and open to anyone to view).

This is no criticism of the author or Community Care because it seems many people are unaware of this guidance from the Office of Surveillance Commissioners which has a section on the covert surveillance of social networking sites (SNS).

“The fact that digital investigation is routine or easy to conduct does not reduce the need for authorisation.

“Whilst it is the responsibility of an individual to set privacy settings to protect unsolicited access to private information, and even though data may be deemed published and no longer under the control of the author, it is unwise to regard it as ―open source, or publicly available.

“Where privacy settings are available but not applied the data may be considered open source and an authorisation is not usually required. Repeat viewing of ―open source sites may constitute directed surveillance on a case by case basis and this should be borne in mind.”

Consent

So this is guidance to members of the State (such as social workers) as to when they can view social media without consent of the author or going to obtain Regulation of Investigatory Power Act (RIPA) authorisation in the form of a warrant from a magistrate (which they are highly unlikely to get).

The guidance also goes onto say that if a parent has privacy settings, then the only way to view it is with the person’s explicit consent OR a warrant under RIPA from a magistrate and anything else is an offence. It also makes clear that using dummy or fake accounts to gain access to another person’s social media presence is ‘inadvisable’.

The tricky bit however, is really about the repeat viewing of a social media page as found in the Amendments to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (“the 2010 Order”).

This says that a local authority can now only grant an authorisation under RIPA for the use of directed surveillance where the local authority is investigating particular types of criminal offences. These are criminal offences which attract a maximum custodial sentence of 6 months or more or relate to the underage sale of alcohol or tobacco.

Repeat viewing

So a local authority can only give authorisation for certain types of criminal offences. These do not include the prevention of child abuse or drug misuse.

So what would count as ‘repeat viewing’? Well the guidance doesn’t say REPEATED (which implies multiple occasions) so my best guess is that ‘repeat’ means what it says on the tin i.e more than once.

Thus, any social worker accessing a parent’s social media page, even if it’s available to the public, more than once, is at risk of committing the criminal offence under RIPA and having their actions potentially actionable in damages. Local authorities are obliged to follow the guidance, they can’t just choose to ignore it.

During the Twitter debate that followed my observation some felt that if a parent chooses to publish the material for the public (and doesn’t make use of the privacy settings) they have effectively waived their privacy. They have, in so far as members of the public are concerned. Any member of the public can go and look at their social media presence but an agent of the state cannot make repeat viewings of it.

And no, you can’t just take off your social work hat and put on your member of the public hat!

Surveillance

I look at it this way. The street outside your front door is open to the public – just like your social media account on no privacy settings. Anyone can stand in that street. If they stand there, they can see your front door, and if you don’t close your curtains, can see into your house. But if it is a member of the state does that then they either need your permission or an authorisation to conduct surveillance without your permission.

It’s the same here – just because you’ve left your curtains open doesn’t mean that the social worker can stand outside your house in a public road and look through your window whenever they want.

There is a case, Re E and N, which shows that failure to obtain evidence legally doesn’t make it inadmissible and the family court would not be the place to punish any offence under RIPA – that would be the criminal court.

But it’s feasible to imagine lawyers making representations that if a social worker has made repeat viewings of social media, and not taken this guidance into account, then their assessment is tainted by this and their evidence should be viewed with caution. Whether or not a judge would accept such representations is a different question.

Explicit consent

But until there’s more clarity on this, and given that it is a criminal offence, the advice must be to only view social media pages/accounts once without consent.

I personally would also counsel against anyone thinking “well, as long as I only do it once, there are seven workers in my team, we can get seven bites at it”. If there’s even a tiny risk that what you are doing may be a criminal offence, don’t mess around with taking that risk.

If you get explicit consent from the parent “I’d like to look at your Facebook profile” “Yes, I agree to that”, then you are good. Otherwise, once is the only safe number.

As a postscript there is also another tricky grey area where a parent has posted something they shouldn’t have done or something defamatory on social media and have been asked to take it down – how can that now be checked? I think the parent would have to consent, or be directed by the court to produce evidence to show that the offending remarks have been removed.

Suespicious minds is a care lawyer who specialises in family law and particularly child protection. The original article this one is based on can be viewed here on his blog.

15 Responses to Do social workers risk a criminal offense by repeatedly viewing service users’ social media?

  1. Crystal Ball November 2, 2017 at 2:38 pm #

    How is looking at social media the same as looking in someone’s window? No, the better analogy would be more like looking at posters put up in the window – social media is broadcasting. The government needs to make it clear to citizens that it is their autonomous choice to make what they share on social media open to the public domain and is viewable to all actors including employees of the state – the onus is on the individual to apply privacy settings. Life is treacherous enough for vulnerable people who may not have the wherewithal to understand all this so social workers need to be empowered to protect them- not hamstrung and frustrated. Anyway it’s all beside the point when state can access the info by the back door. (ref Snoopers Charter)

    • Lisa Birchall November 2, 2017 at 6:07 pm #

      When a social worker or Practice Manager is found on social media parents are held in contempt of court if they do not remove their comments. How would social workers know about comments made on social media if they hadn’t been “snooping”. Boot on the other foot!

  2. Eco-Social Worker November 2, 2017 at 3:37 pm #

    Interesting, I was not aware of this either.

    Does this protection apply to Social Workers as well, I wonder, or can management keep tabs on us via our facebook accounts?

  3. Kent social worker November 3, 2017 at 7:48 am #

    So what about the investigative media who search high profile people on their social media and expose them? In my view if there is inappropriate material found and it personally affects their public position then we have a right to know. What about employers or universities who trawl through potential candidates, without consent. Will the criminalised route apply to them too?
    Come on Suesspucious Minds, it’s plain to see this is another witch hunt against social workers who have to protect the vulnerable and people like you should try working under the pressures of child protection – not just perhaps representing parents who potentially have abused or neglected their children. Whilst they have a right to be represented, the child has a right to protection too. That’s what we do.

    • Challenging patient November 3, 2017 at 8:44 pm #

      You do understand they are merely explaining how the law works.

    • Fran November 5, 2017 at 7:50 am #

      Sorry but if you cannot protect children without snooping through a parents personal profile, you are not doing your job right. If a child is being mistreated or neglected, surely there would be evidence without bringing up the posts they share or comment on on social media. Social services existed long before Facebook and Twitter, they seemed to manage just fine.
      *Witch hunt* is an interesting description. Are you suggesting that social workers should be above surveillance laws? The gagging of family courts and the slightly secretive work of social workers already work against our innocent until proven guilty justice system and shred parental rights. When you’ve got parents being persecuted instead of helped due to depression, disabilty or, yes, financial struggles, the question shouldnt be ‘where can I get more information to damn this person’ it should be ‘what can I do to help’ I’ve seen all this and more since becoming an advocate. Stop complaining about your job being difficult and do it it right.

  4. Sm social worker November 3, 2017 at 11:43 am #

    Hmmm I wonder if the social work student who posted his comment on Facebook expected HCPC to expel him after?!?! Who needed permission to view his page I wonder?
    (Fyi By no means am i condoning his comments but the whole thing does appear that there are different rules depending on which side of the front door your standing! )

  5. Stephen Lindsay November 3, 2017 at 11:50 am #

    In Scotland, this kind of activity is illegal under RIPSA legislation (Regulation of Investigatory Powers Scotland Act) as it constitutes covert surveillance. I would also suggest that using your personal social media account for work purposes is at best crossing boundaries. I would suggest that this is an issue for any public service.

  6. Paula lee November 3, 2017 at 8:59 pm #

    This is interesting. As a child protection social worker I was in court one day last week and was specifically asked by a judge to do a search on Facebook to find persons and message them.

    These particular accounts was viewed more than once in trying to identify the person.

    Thus the information is conflicting as from your perspective I was asked to commit a crime by a Member of the judicial system!

    How can this be, surely judges are aware of the potential criminal offence?

    • L November 13, 2017 at 8:59 am #

      If you were trying to find someone to contact them, rather than looking at a specific profile, this would be more likely to be open source research which is legal.
      Visiting an account more than once in doing this would be collateral intrusion, which could be acceptable if it’s justifiable.

      I think the author is talking about specifically targeting one profile and visiting it more than once over a period of time. This would be surveillance as you’re looking to see what has changed and what updates they have put and would therefore be subject to RIPA legislation.

  7. Chris Shuttleworth November 3, 2017 at 9:16 pm #

    It ought to be obvious that looking at someone’s social media without their consent is problematic for a social worker who is in a position of trust. It’s easy to say that it’s in the public domain but that doesn’t make ie ethically defensible. And to Kent social worker – wind your neck in and stop making assumptions about the author of this piece’s legal practice. The fact that you do child protection work doesn’t mean tbat you have a moral imperative to break the rules because of a vague and tenuous justification that it might help protect children. I’ve done child protection and I do adult protection work at the moment, and I’ve never needed to go snooping on people’s social media accounts to do my job. This is a sensible piece highlighting that social workers could get themselves into bother without realising it. If you think that constitutes a witch hunt you’re deluding yourself.

  8. Mel November 3, 2017 at 9:24 pm #

    If you use your personal account to view a person’s Facebook page who isn’t currently a friend then it starts recommending you as “someone you may know” to the other person. Really not the kind of attention you want to be drawing to yourself in our profession.
    Spying on people isnt ethical, never mind legal. As for the person who thinks it isn’t the same as looking through the window of your house and is more like looking at a poster in the window, I think you are wrong. Looking through my window at my family is far closer to what my social media represents than simply looking at a poster in my window. It has information about what I do in my spare time, often involving my family, key life events like my wedding and birthdays, even deaths. Mine is set so nobody can view it if I do not want them to but does it make it OK to pry into the lives of those that don’t necessarily know how to manage their privacy settings? I think not. It is predatory and sneaky.

  9. Ann McCabe November 4, 2017 at 11:59 am #

    It could also come under the data protection act where are not allowed to to secretly tape meetings while parents are section 36 of the act

  10. Jim Greer November 6, 2017 at 4:20 pm #

    That this occurs was first pointed out to me by a social work student. I was genuinely shocked. Whatever information is gained in this manner will be offset by the loss of trust in the social work relationship. It is totally at odds with the ideals of working in partnership with people normally espoused in social work literature. It is not the same as trying to trace people through Facebook as that is an activity with a positive intention. Spying on people starts with the assumption that they cannot be trusted. It is akin to listening in on people’s conversations.

  11. Jayne November 9, 2017 at 9:13 am #

    Even FB users who have privacy settings should be aware that profile photos are open to anyone. I thought I was safe but a parent found me by looking at my profile pics. I’ve taken off everything that could identify me now.

Leave a Reply to Lisa Birchall Click here to cancel reply.