Avoiding pitfalls when agencies and public servants use social media

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Government departments, public sector agencies and local councils are becoming increasingly active on social media platforms. Social media can provide an important avenue for broadcasting and amplifying messages to citizens, customers, and stakeholders. It also offers the potential for direct two-way communication and engagement. In this edition of In Focus, we look at some ways the social media conduct of agencies and individual public servants could lead to concerns about possible misconduct or maladministration.^[1]

In this paper, when we refer to ‘social media’ we are talking generally about an online forum where users can post or otherwise contribute content. This includes platforms such as Facebook, LinkedIn, Twitter, Instagram and YouTube. Some of the risks we discuss in this paper also apply to digital media sites that allow user contributions or interaction, like websites, comments sections in news articles, blogs, chat rooms, wikis, and even group email chains and messaging applications.

This paper is not intended as comprehensive guidance, and it is by no means exhaustive. We don’t discuss some important issues like defamation laws, the risks of cyber-bullying and harassment, or online conduct that might constitute corrupt conduct.^[2] We also acknowledge that social media is constantly evolving, and inevitably we will learn more about the appropriate boundaries of good practice over time.

Our purpose in this paper is to encourage public servants and agencies to discuss and think carefully about their activities on social media, and to help them recognise some of the issues and risks, including that:

• Official social media conduct must be lawful and reasonable
• Official social media records are subject to state records, information access and privacy laws
• Very senior public servants sometimes blur the line between official and non-official social media
• Public servants might come to be seen as ‘brand advocates’ for their agencies
• Public servants who actively comment about their agency and its work run a particularly high risk of ‘crossing the line’
• Public servants need to be conscious of their professional obligations at all times, including in personal social media activity
• Agencies should have clear social media policies

We end the paper with our observations about the potential for social media to provide an additional avenue for agencies to receive complaints.

Official social media conduct must be lawful and reasonable

Like in any other setting, official conduct on social media must not be unlawful, unreasonable, unjust, or discriminatory. It must also be ethical and consistent with public sector values, including the maintenance of political impartiality.^[3]

There are a wide variety of ways an agency’s use of social media could run the risk of maladministration or other concerns, and it would be impossible to list them all.

To get a sense of the breadth of issues that can arise, here are examples of 3 very different issues that have been identified in the work of oversight bodies recently:

1. In a recent investigation, the South Australian Ombudsman found the SA Department for Health and Wellbeing had engaged in maladministration after reposting content directly from the social media page of the Premier of South Australia. The Ombudsman found the department’s conduct was wrong because it appeared inconsistent with its obligations to be seen as politically impartial.^[4]
2. The NSW Independent Commission Against Corruption has published guidance urging caution in avoiding potential or perceived conflict of interests in relation to social media use, including the need to avoid ‘providing statements or comments that others might perceive as endorsements of a supplier’s products or services, or the capabilities of a contractor or similar entity.’^[5]
3. An individual complained to our office, telling us that their comments had been unreasonably deleted from an official local council social media page. We made inquiries about Council’s policy and procedures on moderation of social media and recordkeeping. We considered whether an internal avenue of appeal was provided for moderation decisions, and the level of clarity and transparency (internally and externally) about the circumstances that could trigger removal of comments on social media.
   
   Following inquiries, we provided advice to the NSW Office of Local Government on the development of their Model Social Media Policy for local councils, which now includes provisions for internal review when dealing with moderation decisions and the circumstances that may trigger removal of comments (see excerpt below).

Official social media records are subject to state records, information access and privacy laws

The NSW Department of Customer Service’s Social media guidelines note that social media channels ‘create state records every day’. Records include posts and comments, responses, and reports generated relating to social media platform analytics.^[7] Social media records attract legislative obligations for agencies, including that:

• State records must be treated in accordance with State Records Act 1998 storage and disposal requirements. We note, State Records NSW has published important guidance on recordkeeping and social media on its website.^[8]
• Social media records (including moderated material and analytics) may be subject to information access applications under the Government Information (Public Access) Act 2009 (GIPAA).
• Personal information must be appropriately handled in accordance with the Privacy and Personal Information Protection Act 1998.

Very senior public servants sometimes blur the line between official and non-official social media

It appears increasingly common, particularly on platforms such as LinkedIn, for some heads of agencies and other senior executives to post from social media accounts under their own name and role title, separate to their agency’s official social media account.

Sometimes it can be difficult to tell if the public servant is treating their account as an entirely non-official personal account, or as an official account of the agency. However, particularly when the person is the agency head or a statutory officer, is identified as such by their handle or profile, and posts material that reports on or relates to their agency and its work, any suggestion that these accounts and activities should be treated as ‘non-official’ or ‘personal’ appears to us to be untenable.^[9] See fictionalised examples (based on real cases we have seen) including:

• Senior executive staff posting stories about agency achievements, such as listing major projects that have been delivered (see example 1 below).
• Senior executive staff promoting personal projects with clear links to their role as a senior public servant – see example 2 below, which was also posted and promoted on the relevant agency’s account.

It is sometimes unclear why an agency head has decided to post material (like a report, comment or congratulations on work done by their agency) to their own named account, when that same material could have been posted to the account in their agency’s name. A post to the agency’s account could include, if appropriate, material attributed to or even directly quoted from the Secretary (for example, where the agency head wishes to be seen to be publicly thanking staff of the agency).

In the lead up to the recent state government election, most NSW Government agency social media accounts announced that they would effectively cease posting updates during the caretaker period. In that case, it might seem anomalous if a head of agency, using an account registered in their own name, continued to post the same kinds of things that would ordinarily be posted on the official agency account.

While we are not suggesting that any public servant would be in breach of any caretaker conventions or other pre-election rules should they remain active in this context, examples 3 and 4 below demonstrate how the line between official and non-official social media usage can be blurred.

If the head of an agency or division sees it as important to be (and to be seen to be) active on social media with their own ‘voice’ – for example via an account in the name of ‘Secretary of Agency X’ instead of, or in addition to the account in the name of ‘Agency X’ – and they are appropriately authorised by the agency to do so, then good practice would be to recognise that the account of a head of agency or division is, like that of an agency, an official account. This would make it clear, for example, that agency policies, state records and GIPAA requirements apply to them. Clarifying the capacity in which the senior official is speaking seems particularly important when members of the public communicate directly with senior public servants through those social media accounts.

Public servants might come to be seen as ‘brand advocates’ for their agencies

Something that does concern us is that, if agency heads and other senior executives are seen to be actively commenting on their own social media accounts about their agencies’ work, this may encourage more junior staff across agencies to think it is appropriate for them to do the same. Junior staff may even come to believe that this sort of activity – for example, posts about their work achievements or individual contribution to some important advice, reform or other project – is something that they need to do in order to get ahead in their agency, or in the public sector generally.

Of course, if public sector employees simply ‘like’ or ‘share’ (without any substantive commentary) posts made by their agency then this will be generally low risk. Public servants are unlikely to fall foul of their employment code of conduct or agency social media policy by doing so – and provided the agency’s post is not itself problematic then there would seem to be no concern with a public servant working for that agency liking or sharing it.

Example 5 – executive posting a link to a position available

Collectively, the individual social media networks of agency employees will likely be far greater than the followers of the agency’s own social media account. Agencies seeking to increase their reach and impact on social media may come to see this activity by employees as a way to amplify their own work and to turn staff into ‘brand advocates’ for the agency.

The NSW Ombudsman’s own social media policy states that staff are free to like or share posts by the NSW Ombudsman – but it also states that our office will never encourage or expect staff to do this. This is because we do not think staff should feel an expectation or pressure, even subtle pressure, to use personal social media to promote or benefit their employer.

Further, even with low-risk activities such as ‘liking’ or ‘sharing’ an agency’s posts, some caution may be warranted. For example, if sharing an advertised role, it might be important to ensure that the post does not undermine the perceived independence of the appointment process or the role (such as by suggesting that the person appointed would work for or to the particular executive).

Public servants who actively comment about their agency and its work run a particularly high risk of ‘crossing the line’

Most staff are not authorised to make public comments on behalf of their agencies, and actively commenting on the work of their agency on personal social media accounts can be risky. One risk is that, perhaps without realising it, the person may disclose otherwise non-public information about the agency’s work that they are not authorised to share.

A less obvious risk is the potential to damage trust in the impartiality and apolitical status of the person, and of the public service.

Government agencies serve the government of the day and are required to implement its policies or programs impartially. Comments on social media that express, either explicitly or implicitly, a view about those policies or programs may run the risk of being perceived as indicating political views about the merits of the government itself.

Of course, public servants, particularly senior public servants, have long been participants in public discussions of policy, in both expert and non-expert forums. Provided this is done in a manner that is scrupulously consistent with their political impartiality, such activity can contribute to the public interest by improving the quality of public understanding and public debate. For example, it is common for senior and specialist bureaucrats to speak at policy forums as experts or ‘thought leaders’. At least in theory, some social media might have potential as a modern extension of this kind of activity – a place where expert public servants can communicate with the public and make genuine contributions to public policy debate, innovation and reform, and participatory democracy.

That said, our observations suggest that some of the current social media activity by public servants appears to be directed primarily toward building professional career networks and their own ‘personal brand’, as opposed to deeply connecting in policy discussion with the broader public or policy stakeholders.

If public servants do seek to use their social media to promote the things they or their agency are doing, caution is required. Public servants should avoid such messages being perceived as directly or indirectly also conveying a political message about what the Government has done or is doing, in a way that could be inconsistent with the public servant’s duty to remain politically impartial.

In this regard, it is important to recognise that the danger of appearing less than fully apolitical can arise just as much from posts that praise, as it can with posts that criticise.^[10] Public servants considering whether to express a positive view about a particular government policy, program or achievement should consider whether they would be comfortable making an equivalent post if they had a negative view. If it would not be ok to say ‘I am ashamed to have worked on this Government policy’, then the safest course would be to assume that it may also not be ok to say ‘I am proud to have worked on this policy’ (see example 6 below).^[11]

Example 6 – senior executive posting about agency role in legal reforms

It’s also important to be mindful that posts and comments could be construed as indirectly or implicitly critical or laudatory, even if not expressly or intentionally so. Social media comments are open to the interpretation of the community. The nature of social media exacerbates the chances of a message being misconstrued, misunderstood, or taken out of context, and the content can be difficult, if not impossible to erase.

Michael Coutts-Trotter, when Secretary of NSW Department of Premier and Cabinet, noted that for public servants – who are identified as such on social media – a comment or even a like on social media could imply partiality. The Secretary said, ‘What you say [on LinkedIn] is seen through the prism of you as a public servant’ and staff must be cautious, particularly those who hold more senior roles.’^[12]

In example 7 below, a senior executive ‘liked’ a post of a ministerial office staff member who was praising their Minister’s achievements in their portfolio. This example illustrates how even a ‘like’ can be open to interpretation – regardless of the senior executive’s intention, might ‘liking’ this post (which also results in the post appearing in the senior executive’s own social media account feed) risk being perceived as political?

Example 7 – senior public servant likes a post that re-posts Ministers wrap-up of portfolio achievements

Public servants need to be conscious of their professional obligations at all times, including in personal social media activity

Even when a social media account is non-official or ‘personal’, and where posts do not directly reference the work of the agency, public servants need to be mindful that their activities are likely to be regulated by public sector and agency codes of conduct or other employment policies and directions, and non-compliance could potentially constitute misconduct and grounds for disciplinary action.

It is generally recognised that, like other people, public servants have a right in their personal lives to participate in political and community activities, to pursue private interests, and to personal and professional expression. This includes a right to participate as individuals in online discussions about social and political issues.

However, this right is tempered by their status as a public servant. Recently the Australian Public Service Commission published guidance for Australian Public Service (APS) employees who want to engage in the Voice Referendum in a personal capacity. The guidance acknowledges that individual APS employees can engage publicly with the referendum, to the extent it is consistent with their ‘obligation to maintain public confidence in the integrity and impartiality of the APS’.^[14]

The requirements of public service mean that to some extent, employing agencies are able to reach into the personal out-of-work-hours activity of public servants on social media. In particular, agencies are able to intervene to regulate conduct that might by incompatible with that individual’s role, or that might otherwise damage the agency and its reputation.

In a recent matter, the Full Court of the Federal Court of Australia noted that ‘[a] person can be both engaging in a personal social activity and conduct themselves in a manner connected to their employment.’ ^[17] This is true in many different contexts. What is unique about social media is that it may amplify the chances of that conduct becoming widely and permanently publicly available, and coming under scrutiny by the public, an employer or other relevant body such as an oversight authority.

In one case, an immigration department staff member’s employment was terminated for breaching the department’s code of conduct by posting comments under an anonymous Twitter handle that were critical of the department. The High Court held in that case that the limitation on public servants’ ability to participate in political communication was reasonably appropriate to maintain an apolitical public service.^[20]

When considering the potential for non-official social media to raise compliance issues in respect of public sector employment legislation, employment codes of conduct and social media policies, the following are important considerations:

• Anonymity can never be guaranteed – explicitly identifying oneself and one’s employer exacerbates the risks of inappropriate on-line conduct. However, avoiding being identified as a public servant or agency employee, or otherwise using social media anonymously or by using a pseudonym may be of limited benefit in mitigating the risks. Adverse findings have been made against public servants where they did not identify as an agency employee, or even where they adopted an anonymous or pseudonymous account.
  
  Public servants who post anonymously or under a pseudonym should assume that at some point their identity and their employment with an agency may be discovered.

• Liking, sharing, reposting, following, friending, tagging – all these activities may impliedly communicate something – ‘liking’ a post carries similar risks to posting material, as it might reasonably be perceived as an endorsement of the content, even if that is not the intention. This risk also applies, and perhaps more so, to ‘sharing’ or ‘reposting’ content (whether with or without added commentary, and whether positive, negative or neutral).
  
  ‘Following’ or ‘connecting/friending’ is generally lower risk, and significant risks will generally arise only to the extent that the person subsequently engages with content.
  
  Being ‘tagged’ in a post can carry some risk of being seen as associated with or endorsing content. If a public servant is tagged in a post that they themselves would not post, they should take steps to ‘untag’ themselves and consider asking the person not to tag them again.

• Account holders may hold some responsibility for the comments of others – content posted to a social media account held or controlled by a person can be considered the responsibility of that person, regardless of who posts or contributes to that content and whether or not the person is aware of that content. Public sector employees therefore need to take steps to ensure that any content posted by others on their social media accounts (ie anything posted to their page, or comments made in threads responding to their posts) do not reflect on them in a way that might place them in a position of contravening their agency social media policy or code of conduct.
• Disclaimers (eg ‘these views are just my own’) are of limited use – in some cases, like on professional networking sites like LinkedIn where a staff member’s employment with an agency will be disclosed, it may be useful to include a disclaimer on a profile or post to indicate that views are a person’s own and do not represent the agency.

However, a disclaimer does not eliminate all the risks. Public confidence and trust can still be damaged by an employee’s behaviour even if they state that they are acting in a personal capacity.

• Key factors when considering the risk of personal social media comments – on a scan of available guidance and existing policies, there are some differences in the approach to what constitutes impermissible non-official social media activity. However, whether the person conducts the activity during work hours or out of work hours appears to be of little, if any relevance.

Instead, recent disciplinary cases suggest that some factors that affect the risk of social media activity being seen as inappropriate employment-related conduct or misconduct include:^[21]

– The seniority of the employee, and the extent to which their particular role requires them to maintain integrity, professionalism and ethical values

– The relationship between the post or other content involved in the use of social media and the agency or its functions or work

– The extent to which the agency or employee is identified or identifiable, and whether the agency may be associated with the comments

– The nature of language and opinions expressed or implied (for example, the extent to which they are offensive, aggressive, sexist, racist, etc).

Agencies should have clear social media policies

Social media policies operate alongside codes of conduct and other policies, providing important guidance for staff on appropriate social media use.

The NSW Government Social Media Guidelines^[22] require all NSW Government departments to have a whole-of-department policy relating to non-official social media use in place, and the NSW Office of Local Government has published a Model Social Media Policy^[23] for councils.

In addition to developing a social media policy, agencies can reduce risk by:

1. ensuring staff have received the policy and that they have understood it
2. having ongoing conversations with staff about appropriate social media use
3. reviewing the policy and providing regular internal communication and training (as well as when issues arise). Agencies may wish to consider tailored approaches to training and education, for example for executive and non-executive staff.

Public servants can refer to the Australian Public Service Commission publication Social media: Guidance for Australian Public Service Employees and Agencies for more information.^[24] Although the guidance was developed for another jurisdiction, much of the information is helpful in the NSW context.

Social media may be an additional ‘front door’ for complaints

Given the Ombudsman’s core role as an external complaint-handling body, and our oversight of the internal complaint-handling systems of agencies, we should take the opportunity to make a final point about social media use in the public sector.

As social media provides opportunity for the public to comment and provide direct feedback to agencies, it can also be an opportunity to complain – and this is a good thing. The 2022 Australian Standard Guidelines for Complaint Management in Organizations (AS 10002:2022) encourage organisations to make their complaint handling systems more accessible and offer flexible methods for making complaints, including through social media. The NSW Government’s Complaint Handling Commitments also promote greater accessibility of complaint-handling processes.^[25]

Agencies should consider welcoming and acknowledging complaints that have been received via social media. However, it will generally not be appropriate to communicate substantively with complainants in a public or group forum, and agencies should not encourage complainants to provide personal information on public platforms.

State Records NSW advises agencies not to place statements on social media channels to the effect that complaints received via that channel will not be officially registered. It says that: ‘[a]s your organisation is itself using these social channels as official communication channels, you do need to respond to valid business issues submitted via your social channels.’^[26]

Agencies can, however, respond to any complaints by directing the complainant to a more appropriate (and private) channel – such as by providing contact details to the relevant complaint handling unit or a link to an online complaint form. Agencies should develop internal processes to ensure that any complaints or other requests for service or response made on social media are recorded and appropriately acted on.

Endnotes