The vast majority of local authority policies covering the use of social media by social workers are not mentioning guidance or law regarding the surveillance of social media accounts, including those of service users, which could leave social workers liable for committing a criminal offence, a Community Care investigation has found.
A freedom of information request by Community Care to every local authority in England, answered by 134 of the 152 councils, asked for their written policies around the use of social media – both council-wide and specific to social workers. Just six of those that responded gave guidance around the surveillance of service user social media profiles.
These councils either did so with their own guidance, or by mentioning official guidance from the Office of Surveillance Commissioners (OSC), which now sits under the Investigatory Powers Commissioner Office, or the Regulation of Investigatory Powers Act (RIPA), for which an order could be sought if social workers want to repeatedly view service users’ social media profiles.
Alongside the FoI request, Community Care conducted a survey of social workers, which found little understanding and confidence in how social media can be used in safeguarding.
As explained in a post by lawyer and blogger Suesspicious Minds, the little-known piece of guidance from the OSC means employees of the state could be liable for damages if they repeatedly view the profiles of service users without their consent or an order under RIPA.
While it is common for councils to have independent guidance documents mentioning the RIPA and how it should be used, most of the policies around the use of social media sent to Community Care did not mention the act or practice around covert surveillance of profiles.
Alongside those six councils that explicitly mentioned the guidance or gave advice on using social media for surveillance, a further 54 mentioned interaction with service users in their social media policies, meaning 74 did not touch on this point.
Most warned employees against ‘friending’ or interacting with service users on social media. In those that mentioned service users, but not the guidance, the viewing of profiles with a view of obtaining evidence for cases was not covered.
However, a survey of 197 social workers by Community Care found that half had looked at a service user’s profile on social media, with more than a quarter of these saying they had done so “with a view to gathering evidence”.
Just one in five had heard of the guidance from the OSC, and only 11% were confident in their understanding of it.
Meanwhile, four in five were not confident of their employer’s rules around using social media as part of a case, and nearly two-thirds told us they wouldn’t know who to ask in their local authority for guidance.
Examples of guidance
The councils that did mention RIPA or interaction with service user profiles for the purposes of surveillance of service users in their social media policies were Calderdale, Redcar & Cleveland, Bexley, Isle of Wight, Knowsley and South Tyneside.
Calderdale: “Where social media is being used to seek and gather information as part of an investigation, this can in certain circumstances (where the collection of private information is involved) constitute surveillance, which would then require authorisation under the Regulation of Investigatory Powers Act (RIPA) 2000.”
“If you are considering using social media for these reasons please seek guidance from the relevant RIPA Officer(s) listed in the guidance.”
Redcar & Cleveland: “It should be noted that local authorities have no power at all to grant authorisations for intrusive surveillance and can only undertake operations for the purpose of preventing or detecting crime.
“It must be noted that, for the council, surveillance under RIPA may only be authorised where it is used for the purposes of preventing or detecting a criminal offence where the offence under investigation carries a custodial sentence of six months or more. It is very unlikely; therefore, that surveillance of this nature would be justified in relation to general social work.”
Bexley: “In any case where social media is to be used as part of an investigation, advice should be sought from Legal Services in any event.”
Isle of Wight: “You should also not use social media to undertake covert surveillance of another person, employee or member of public. Covert surveillance includes seeking to establish or maintain a relationship with somebody for the purpose of obtaining information relating to that person or another.”
Knowsley: “Information contained on a social media site should usually be used as a means of corroborating other evidence you have regarding a matter under investigation rather than as the sole source evidence to support your case.
“Social media sites can be accessed by staff to carry out investigations by using their own private social media account, through an identity created specifically as the department’s representative or through a covert identity using a false name. Surveillance can be by simply visiting or viewing a third party’s account or entering into a personal relationship with a third party.”
South Tyneside: “If it is deemed necessary to befriend an individual, legal advice must be sought from Legal Services first, as a RIPA authorisation may be required.”
Social media guidance policies from both the British Association of Social Workers (BASW) and the Health and Care Professions Council (HCPC) do not mention the RIPA, relevant guidance or potential ramifications.
Katherine Timms, head of policy and standards at the HCPC, said the regulator would be updating its social media guidance shortly “to include further advice and support on the topic of confidentiality”.
She added: “In using social media, registrants must follow the HCPC standards of conduct, performance and ethics. Specifically, they should communicate appropriately; act in an honest and trustworthy way; respect confidentiality and maintain appropriate boundaries. Registrants should always be mindful of their obligations in this area in order to maintain service user confidence in their actions. Similarly, registrants should manage risk appropriately; information held online may not be accurate and relying on it may pose a risk to the service user.”
BASW’s policy says: “Social workers have a duty to act in the best interests of service users and consider people’s right to respect, privacy and confidentiality whilst also managing and assessing risk within a legal framework.”
“Social workers have a responsibility to consider the use of social media as part of safeguarding investigations but need to be mindful of the ethical implications. It is important to work with those professionals who are best placed to undertake the task of scrutinising social media and to ensure it is in the service user’s best interest.”
It also says social workers should not accept service users as friends on social media.
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Social media as part of evidence is a confusing landscape for social workers, as the survey by Community Care highlights.
A serious case review published earlier this year said social workers should use social media to “enhance” assessments and a judge last year told practitioners they could use social media to find missing parents in order to make sure they know about court proceedings.
Claudia Megele, who is co-chair of the Principal Children and Families Social Worker (PSW) Network and has researched online safeguarding and the ethical use of social media, says there are “a lot of conflicting messages”.
“Social workers have been blamed in some cases, for example in Baby Peter’s case, for not having checked the social media profile of the mother.”
Megele says that social work practice is complex and what is important is the source, context, purpose, authenticity and admissibility of information and how a piece information is accessed or used. She explains that “the guidance and policies are not always explicit” and that makes it difficult for social workers to navigate this area. She adds “Most of the policies are principle-based and need to be complemented with more systemic and behavioural guidance.”
Referencing the case last year in which the judge had said professionals could use Facebook to trace a mother so that she could attend an adoption hearing, Megele points out that this example “should not be generalised as it was to use Facebook as a communication tool to uphold the voice and the rights of the mother”.
“After all social work is a relationship-based profession and practitioners would be well advised to seek consent from service users or obtain appropriate authorisation such as a court order before viewing service users’ social media activities and postings,” she adds.
‘Have you looked?’
Adam Birchall, Megele’s fellow co-chair of the PSW network, feels the OSC guidance isn’t in the consciousness of people across partner agencies, not just social work, and that makes it difficult to find ways to work.
“Our experience is judges have said ‘well, have you looked?’ and the answer to that is ‘no because the guidance says we can’t more than once’,” he says.
He also adds the guidance can be “open to interpretation”.
“It talks about where privacy settings are available, but not applied, then we can consider that data open source [and] we wouldn’t need authorisation to look at [it]. But repeat viewing of open source may constitute direct surveillance on a case-by-case basis.
“What does ‘may’ mean? Who needs to seek authorisation and why, if it is open source?”
Birchall adds the OSC guidance is “outdated” and not something people often know about without having purposefully searched for it.
“We’re in a digital age now, and so many people engage through social media. Children, and young people particularly, their lives are lived out on social media so why would we not [engage]?
“If we can approach someone in a park or in a shopping area why wouldn’t we be doing the same things on social media. It is a different space, it is a virtual space, but it is [also] a different space to engage people,” Birchall suggests.
He says it currently feels like “the system is waiting for someone to do something wrong to be challenged about it”, which shouldn’t be the case.
“We should be in a place where actually people can look at the guidance and say ‘this makes sense for my role’. It just makes more sense [to have] a proactive piece of guidance rather than something we’re waiting to test in case law.”