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It was reported recently in the third sector press that a charity, covid:aid, received offensive comments from anti-vaxxers on one of its posts which was promoting its campaign, Covid Heroes. The campaign is described as paying “tribute to those everyday heroes in the UK going above and beyond to help others throughout the COVID-19 pandemic”. The anti-vaxxers appeared to think that the charity was endorsing vaccination. There were posts suggesting the charity should be put on trial for crimes against humanity and one poster compared the charity’s volunteers to Nazis. The charity decided to stop promoting its campaign via Facebook. Its CEO said that “We started as a group of volunteers wanting to positively support others at a difficult time, and it’s been highly distressing and dispiriting for all those at covid:aid who have witnessed this slew of negativity over the past month.” 

At present, social media is not sufficiently regulated. Much of the regulation is left to the social media platform owners, the global tech companies, to regulate. Whilst the social media platforms have their own rules, for example Facebook has its own ‘Community Standards’ and Twitter has ‘The Twitter Rules’, such rules do not adequately prevent offences being committed on social media.

Charities must be prepared to deal with matters quickly and prevent escalation as far as possible. This article sets out some practical tips on handling social media issues and outlines a number of different offences that could be committed by posting content on social media.

Practical tips for monitoring

Issues cannot be tackled until they are discovered so having a member of the charity designated to keep an eye on what is being said about the organisation online is the only way to ensure that malicious actions are spotted early. Monitoring is made easier using online “alert” features that can be set up so that updates are delivered to an email inbox.

A sensible approach to handling any issues that arise (unless the issue is more serious), is to step up monitoring and see how the situation develops. Often, a response from the charity will simply add fuel to the fire, and matters may peter out if a reaction is not forthcoming.

Evidently, if matters continue, some action will need to be taken to try and prevent further harm. Individuals posting defamatory, sensitive or otherwise harmful comments could potentially be blocked if they are posted on the charity’s account, however if they originate elsewhere, this may not be possible. Charities can also potentially remove posts if they are posted on the charity’s accounts, but not if they are posted on other accounts. 

Litigation is an option, but can turn a difficult situation toxic, so a softer approach in dealing with social media platforms is preferable. Online platforms have to provide complaints procedures but as many platforms are US-based companies, any complaints will be viewed in light of American freedom of speech principles, which tend to be wider than those in the UK. When writing a complaint, therefore, it is a good idea to focus on the impact of the action(s) being complained of e.g. the distress caused to staff due to the spread of rumours.

Legal offences

There are four elements required to bring a defamation claim: 

  1. there must be a statement that would lower the subject in the estimation of right-thinking members of society generally. The publication of the statement must cause or be likely to cause serious harm to the reputation of the subject. 
  2. publication – it must be established that the statement complained of has been published and the defendant has either published or is responsible for the publication of the statement; 
  3. the meaning of the statement - the Court accepts that a statement could be understood in different ways by different people, and so they look to the “right” meaning of the words included; and 
  4. identification of the claimant.

Defamation proceedings must be issued within 12 months of the date of the first publication. Separate to defamation is the offence of malicious falsehood. In relation to social media posts it would be applicable where the author of untrue and damaging material has published the content with an improper motive and the subject has suffered financial loss.

In the event that confidential or sensitive information is published regarding a charity, it is likely to be a breach of the common law of confidence. If the charity is the owner of that confidential information it can act in relation to the breach. On a practical level, commencing proceedings for a breach of confidentiality does not provide a full remedy against the disclosure. That is because the damage is usually done at the time the information is posted online. However, the Court can grant an injunction against the further disclosure of the confidential information, order the removal of the information from the internet and award damages as compensation for the wrongful disclosure of the information.

Posting content on social media either directly or indirectly about someone, such as trolling or cyber-bullying, that causes them to suffer distress or alarm could give rise to a claim under the law for harassment. There is also a separate potential criminal offence of harassment.

Further offences that could be committed by posting content on social media platforms include breach of data protection, misuse of private of information and intellectual property infringements (copyright, trade mark, passing off).

If any of the above-mentioned offences have been committed, the charity or an individual of the charity, depending on the exact offence committed, would have the right to commence a legal claim. However, this involves an element of risk as well as being both a costly and lengthy process. 

One issue is identifying the person posting, as they are likely to be using a pseudonym. It is possible to obtain a Norwich Pharmacal order (NPO) from the court, requiring the social media platform to provide details of the poster, such as the email address they signed up with or IP address used. However, this is expensive to do and does not guarantee the details of the poster will be revealed, as they may have set up the account with a new email account or used public wifi to send the messages.

Before any legal proceedings are issued, it would be prudent to consider sending a cease a desist letter to try and get the individual posting the content to remove it. Reference should also be made to the social media platform’s rules to see whether any of them have been breached and contact with the social media platform owner should be considered. 

The instruction of a PR expert should also be considered depending on the exact nature of the content and whether a satisfactory outcome could be achieved without resorting to legal proceedings.

There are practical steps that charities can take when they are subject to posts which overstep the mark and tip into harassment and offensive comment. However, it is understandable that covid:aid, a small charity with a CEO and volunteers, decided to remove its post given the resources and time that would have been needed to take action against the many individuals who had posted in response to its campaign.

In July 2021, the Law Commission published proposals for a reform to the laws on offensive online communications. One of the recommendations published by the Law Commission is the introduction of a new false communications offence. The main focus of the offence would be where the post was sent to cause non-trivial psychological or physical harm to a likely audience and for which they do not have a reasonable excuse. At present, the proposals published by the Law Commission have not been adopted by Parliament.