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.”
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.
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!
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.
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.