If we needed any demonstration of the difficulties inherent in regulating or managing online content, then we need to look no further than the troubled passage of the Online Safety Bill through Parliament. In its quest to tackle harmful content online it has faced opposition from all sides who laud its aims but criticise its proposed method of implementation. At the time of writing, it is still not clear what approach will be taken.

Against this backdrop, on 17 January 2023, the Charity Commission published its consultation on its new draft guidance on "Charities and Social Media". In this piece, I will look at the draft guidance and some of the key questions it presents.

Much of the draft guidance is simple common sense. It is arranged into six sections:

  1. Adopt a social media policy
  2. Manage the risks in posting social media content
  3. Plan how you will engage on controversial topics and be prepared for any reaction (both positive and negative)
  4. Understand that Charity Commission Guidance CC9 (Campaigning and Political Activity) applies online
  5. Remember that the Code of Fundraising Practice applies to any fundraising via social media, and check that you comply with the Code
  6. Ensure that your charity is safe online and protect all those who work with you.

(The six sections of the guidance)

We are living in a very fractured society, and social media sits at its heart, amplifying and reflecting the mood of its users. Whilst some is positive, there is also much anger, hostility and discontent. Charities are often faced with an onslaught of abuse when posting online. We all know of examples of charities that have been bombarded on social media with criticism and hate speech. It is often hostile and aggressive, in many cases downright nasty - and sometimes, criminal.

One of the most important reminders in the draft guidance is that the responsibility for your charity's use of social media rests with the Trustee Board - just like any other aspect of the charity's work.

If your Board do not use or understand social media, that is not an excuse for them failing to engage with your charity's digital strategy. They will need to understand what social media is and that whilst it can be a force for good, it is also used for more nefarious purposes. The Trustee Board will then need to help shape your policy and tackle some of the more tricky issues that social media raises.

Digital governance is an important part of the Trustee Board's role – they need to know what will be communicated, who will write and publish content, and through what means. They then need to monitor the results and be clear that they have sufficient data to know whether your digital strategy is amplifying your message or creating unknown risk. The draft guidance sets out five key duties for trustees:

  1. Adopt a social media policy
  2. Use social media only to help achieve your charitable purposes and in a way that is in your charity's best interests.
  3. Comply with all relevant laws and regulations
  4. Ensure that you comply with CC9 when undertaking online campaigning or political activity
  5. Keep your people safe online.

(The five key duties of trustees in relation to social media use)

The Commission makes it very clear that charities can only use social media in furtherance of their charity's purposes. That makes it seem simple. The reality is always more nuanced.

  • Who has control of your social media accounts? Are they clear about what they can and can't say online? Do they adopt the charity's voice?
  • If your charity works through social media – with online apps and platforms that help build communities on social media – how do you ensure that all posts are appropriate?
  • If your charity is maligned online or harmful content is posted in your space - should you respond to correct the position or take down the content?
  • If a politician makes a point with which your charity agrees, can you 're-tweet' or 'like' a post, or would that breach the rules on party political campaigning?
  • What if a senior staff member tweets a message that some regard as hate speech, or likes posts on Instagram that suggest they have controversial or racist views?
  • How far do charities have to go in ensuring that their social media policy is followed by staff and volunteers in their "own time"?

These are tricky issues that touch upon human rights - to a private life and freedom of expression.

The draft guidance does not provide advice as to where these limits should be set. This is left to the trustees, but the Charity Commission will be judge and jury if an incident arises, and it decides that the trustees have not acted reasonably.

The draft guidance confirms that charities who use social media should have a social media policy. When we assist clients in preparing a social media policy which meets their charity's circumstances, their use of social media and risk appetite, we often advise clients to work through a number of different scenarios in order to help inform and shape their policy.

In preparing or updating your social media policy, you should consider some of the tricky issues you have had over the last few years, and then prepare a policy which would help to navigate those issues. The policy may not be perfect, but it will be a really helpful tool in helping your charity navigate difficult situations. This is not something that can be left to your digital media manager or team – though of course they should be involved in shaping the policy.

The draft guidance is a good starting point for those starting from scratch, and a helpful checklist for those who already have a policy. The guidance is a 'one size fits all' approach to a sector that engages with social media in many and various ways. Even for those with digital marketing teams and a clear digital strategy, it is a helpful reminder that it is your Trustee Board that is responsible for your charity's activities online, and it they who must approve your risk appetite and approach.

If you are interested in responding to the consultation, you will find the online questionnaire here. We'll be publishing our own response on the draft in the next few weeks, that you'll be able to find on our website or via @WBD_CharitiesUK on Twitter.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.