The Charity Commission is to be congratulated for listening to much of the feedback in its consultation on social media.
In many areas where there were significant concerns, the Commission has simplified or nuanced its position in its final guidance published today.
It clarifies that a charity is only required to have a social media policy if it uses social media and there are a number of relevant factors, including the size of the charity and how well it is established.
The guidance no longer uses subjective terms like “problematic” content and now provides a definition of “harmful” content by reference to the UK Safer Internet Centre, making the standard against which social media posts are judged much clearer.
There is also helpful confirmation that a charity is able to legitimately post about wider issues, for example if it engages supporters and the potential benefits outweigh those risks. The Charity Commission gives the example of national sporting event, but in my view, this could equally apply to Black Lives Matter, Pride and mental health initiatives, as well as world events, for example, expressions of solidarity and support for Ukraine at the time of the Russian invasion.
The guidance crucially recognises that “trustees, charity employees and any other individuals have the right to exercise their freedom of expression, within the law in their communications, including when using social media” and also says that there is no expectation that “trustees monitor personal social media accounts”.
In addition, there is a much more nuanced guidance on the relevant factors to take into account in relation to personal posts, for example, the role of the person and how the account is badged. This nonetheless remains a potentially fraught area and not one that can always be easily navigated.
Trustee role now more onerous in some cases
Although the guidance is presented as being proportionate and that is welcome, it does in some cases make the role of being a trustee more onerous. For example, trustees are asked to get involved “in dealing with any significant social media issues or crises”.
Charities that post on controversial topics may find themselves trolled or subject to negative criticism routinely and unless the response is at an unprecedented level for the charity, this should be capable of delegation to the executive team, rather than involving all of the trustees. It would also have been helpful to point out that trustees should engage through proper governance processes via the chair and CEO and not start posting their own thoughts on a charity’s post on social media.
In addition, the guidance suggests in relation to riskier contexts including “emotive” issues, charities may want to take independent advice from a suitably qualified person and use the Commission’s trustees’ decision-making risk framework. This is not always going to be practical and potentially makes the role of trustees more operational than governance.
Social media moves very quickly and it is not always possible to make a written note of all decisions and particularly to judge an urgent social media response against very detailed risk criteria, particularly if all trustees need to sign it off. This may make it difficult to respond in real time and deter some charities.
Respect and tolerance
The area where the Charity Commission has stuck to its guns is in relation to “emotive” matters where the Commission states that the “potential for criticism can be mitigated by the trustees ensuring that the charity conducts its activity with respect and tolerance”.
As many have pointed out, there is no basis in law for “respect and tolerance” and the consultation responses that I have seen did not support its inclusion.
Of course, charities are mindful of their impact. However, in the same way that other parts of the guidance are nuanced, it would have been helpful for the Commission to recognise that charities manage their reputations differently, based on various considerations including their stakeholder and supporter base. The nature of engaging with controversial topics means that criticism from some quarters may bolster a charity’s reputation with others.
In addition, the issue of “respect” is a difficult one. Charities should not be defamatory that goes without saying. But it is difficult to see why a charity should “respect” an institution that has engaged in egregious human rights abuses, structural and systemic racism or in relation to corporations, utility companies for example, that pollute rivers.
It is also interesting as the tenor of this language mirrors Charity Commission CC9 guidance that pre-dates 2002 before there were major reforms. Yes, social media is a big game changer, but we seem to be going back to a more historic narrative. However, the Commission has been careful not to make “respect and tolerance” a legal requirement, so it will be interesting to see how this plays out.
All in all, it is pleasing that the Charity Commission has taken onboard much of the feedback and charities are in a much better position to plan, particularly in the light of the next general election.
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