1 Appendix B Blgging Intrductin Blgging is increasingly becming an imprtant and legitimate part f the peratin f a demcratic sciety. It is an efficient, cst-effective and enjyable way t get in tuch with cnstituents and discuss imprtant issues with the cmmunity yu represent. This guide is aimed at members wh are new t blgging and scial netwrking as well as experienced blggers and netwrkers. It may als be helpful fr standards cmmittee members and mnitring fficers. It explains the psitive rle f blgging. It prvides infrmatin n hw the Cde f Cnduct (the Cde) may apply t blgging and scial netwrking and gives sme examples f tribunal cases that have dealt with the issues. What is a blg? A blg is a frequently updated individual website discussing subjects ranging frm the persnal t the plitical. It may fcus n ne narrw subject r a whle range f subjects. What is scial netwrking? Scial netwrking is an nline methd f sharing infrmatin, phts and views with cntacts and assciates. Examples f scial netwrking sites are Facebk, Twitter and MySpace. Hw d members use blgging and scial netwrking? There are a number f different ways yu can use scial netwrking r blgging. Scial netwrking r blgging can be: spnsred by yur authrity e.g. a leader r members blg carried ut as an individual carried ut annymusly It is imprtant t nte that when blgging the Cde may apply. This will depend n the factrs explred belw.
2 Using cuncil prvided media If yu use nline media t prmte yur wrk as a member r thrugh cuncil websites yu will be regarded as cnducting the business f the authrity. Cmmunicating in this way is mst likely t engage the Cde. As an individual The cntent f private, nn-plitical blgs are less likely t engage the Cde. It will again depend upn the particular facts whether r nt the Cde applies. It is the cntent f a blg and the circumstances surrunding its creatin that will determine whether r nt its cntent falls under the Cde. A disclaimer in a private blg which says that any cmments are nt made in an fficial capacity will nt necessarily prevent breaches f the cde being fund. See Mullaney and Drrian cases belw. Annymus blgging Annymus satirical websites raise ther issues. The first pint t cnsider is whether it can be prved that yu upladed the site cntent. Althugh this may be generally suspected, the First Tier Tribunal (Lcal Gvernment Standards in England) wuld expect an Ethical Standards Officer t be able t prve (n a balance f prbabilities) that the cntent has been upladed by a member. A standards cmmittee wuld als expect similar prf frm an investigating fficer. If prf is established it is then necessary t shw that yu acted, claimed t act r gave the impressin that yu were acting as a member when yu psted the ffending cmments. Hw des the Cde f Cnduct apply t blgging? When cnsidering the applicatin f the Cde t blgging and scial netwrking, it is essential t cnsider whether the Cde will apply t yur blg and which paragraphs yu shuld be aware f in rder t ensure ethical blgging. Fr the Cde t apply t yur blg paragraph 2 f the Cde needs t be satisfied. Paragraph 2 makes it clear that the Cde nly applies when yu are acting in yur fficial capacity. Official capacity is defined as cnducting the business f the authrity r acting, claiming t act r giving the impressin that yu are acting as a cuncillr. Fr further infrmatin n fficial capacity please see ur quick guide t fficial capacity. The decisin as t whether yu are acting in yur fficial capacity will depend n the particular facts f each case and the circumstances surrunding yur blg. There are a number f factrs that will be taken int accunt when assessing this. These include: Hw well knwn r high prfile yu are as a member. The mre high prfile yu are, the mre likely it is that yu will be seen as acting in yur fficial capacity when yu blg r use a scial netwrking site.
3 The privacy settings n yur blg r scial netwrking site. If yu have a private, persnal blg, ensure that yu have apprpriate privacy settings s that yu decide wh can read yur psts. If yu have a plitical blg this may well be pen t all readers. If cnstituents are able t see yur psts, they may assume that yu are acting in yur fficial capacity as their representative. The prfile n yur blg r scial netwrking site. Yu shuld set ut clearly in yur prfile if this is a plitical r persnal blg. Identifying this will enable readers t better understand if yu are seeking t act in yur fficial capacity r nt. Nevertheless it may be pssible in a persnal blg t give the impressin that yu are acting as a member even thugh yu have stated therwise. Als, yu cannt discuss cuncil business n a persnal blg and/r make gratuitusly ffensive remarks abut thers wh are linked t the cuncil and then claim t be ding s in a private capacity. When blgging yu shuld bear in mind the fllwing paragraphs f the Cde will apply t yur nline behaviur just as they wuld t any ther frm f cmmunicatin. Paragraph 3(1) - Treating thers with respect: The aim f the Cde is nt t stifle plitical pinins and arguments. As such, plitical cmments and cmments abut ideas are less likely t be seen as disrespectful and result in a breach f the Cde. Hwever, persnal jibes r remarks aimed at an individual may well be seen as disrespectful and culd lead t a breach f the Cde and pssible sanctins. Paragraph 3(2) (d) Disclsing cnfidential infrmatin: Befre releasing any infrmatin n yur blg r netwrking site, check if it is cnfidential and if yu have the right t release it. Paragraph 5 Disrepute: Because f yur rle, yur actins and behaviur are subject t greater scrutiny than that f rdinary members f the public. Yu shuld be aware that yur actins might have an impact n yur ffice r authrity. Dishnest r deceitful behaviur in yur rle as a member may bring yur ffice r the authrity int disrepute. Paragraph 6 (b) (i), 6(b) (ii) and 6(c) Use f resurces: Yu must nt use lcal authrity resurces imprperly t cnfer n r secure fr yurself r any ther persn, an advantage r disadvantage. Als yu must ensure that these resurces are nt used imprperly fr plitical purpses - including party plitical purpses. See the Jhnsn case belw. Yu shuld als cnsider ther nline activities where the Cde may apply: Frum psts. If yu g n t a frum and identify yurself as a member then it is likely that the Cde will apply when yu pst entries. If yu put cntent n the site which yu culd nly have btained as a member it is pssible t argue that yu have given the impressin that yu were acting as a member even if yu did nt identify yurself as such when yu made the psting. Cmments made by thers. It is als imprtant t regularly check yur wn blg r netwrking site t ensure there are n defamatry r bscene cmments psted by thers. If this des happen yu shuld remve the psts as sn as yu becme aware f them. Yu shuld als take steps t discurage users frm psting such cmments in the future.
4 Friends n scial netwrking sites. Yu shuld be aware that anyne yu include as a friend n scial netwrking sites culd be regarded as a persn with whm yu have a clse assciatin within the meaning f paragraph 8 f the cde persnal interests. Simply including smene n a site as a friend des nt establish a clse assciatin but it is ne factr that wuld be taken int accunt in deciding whether such an assciatin exists. Human rights cnsideratins In cnsidering whether yur use f scial netwrking media have breached the Cde, Article 10 f the Eurpean Cnventin n Human Rights (the right t freedm f expressin) must als be taken int accunt. The First Tier Tribunal and curt cases have made a number f decisins abut this issue. Yu are less likely t breach the Cde where yu are making genuine plitical statements. This means that yu are less likely t breach the Cde if yur cmments are abut anther member s plitical psitin r are a genuine expressin f plitical differences with smene. The curts have established that this is because f the fundamental imprtance f freedm f plitical expressin in a demcratic sciety. Hwever, any plitical expressin shuld avid being just an expressin f persnal anger r abuse twards smene since insults and abuse d nt nrmally qualify fr the prtectin f Article 10. If yu make rude cmments abut a member f the public r an fficer f an authrity it is mre likely that yu will be fund t have breached the Cde. Examples f cases Examples which illustrate hw the First Tier Tribunal and standards cmmittees have viewed cases invlving scial netwrking can be fund in(1): Cuncillr Mullaney APE 0400 and High Curt judgment Birmingham City Cuncil In this decisin factrs relevant t the cnclusin that cnduct was within fficial capacity included the fllwing The subject member trespassed nt an individual s prperty and sht a vide that he subsequently psted n Yu Tube. The aim f the vide was t galvanise the planning department int taking actin cncerning the building. The YuTube vide cncerned identified the subject member at the utset. The subject member identified himself several times as a member. The vide was subsequently published n the subject member s website - the hmepage f which identified him as a member. References were made in the vide t the jurisdictin f the subject member s cuncil. The subject member failed t remve r edit the vide when requested. The tribunal decisin n breach was upheld by the High Curt and the case was sent back t the Appeals Tribunal t cnsider if the sanctin they applied was apprpriate.
5 The sanctin applied was a ne mnth suspensin. Click here fr a link t the case. Cuncillr McTigue APE 0421 Middlesbrugh Cuncil The Appeals Tribunal accepted that Even if it became clear frm the frum (an n-line frum hsted by the lcal newspaper) that an individual wh was psting n the frum was a member, the Cde wuld nt autmatically be engaged. The questin was whether in the pstings n the frum the member was deemed t be, r gave the impressin that he r she was acting in the rle f member. This was fact-sensitive and wuld very much depend n the cntent f the pstings. The subject member had used a pseudnym and stated that she was n the frum as a resident wh just happened t be a member. Taking the cntents f the pstings as a whle the member did give the impressin that she was acting in the rle f member and representing the cuncil. In a series f psts the subject member discussed cuncil business, utlined what had happened at cuncil meetings and referred t herself as a cuncillr. Sanctin applied was a tw mnth suspensin. Click here fr a link t the case Mayr Jhnsn Greater Lndn Authrity Standards Cmmittee Decisin The Mayr f Lndn linked in his tweet t the frnt page f the Sun, which n that day had annunced its decisin t endrse the Cnservative party. The standards cmmittee fund that he had breached paragraph 6(b) (ii) f the authrity s Cde because he tweeted using his mayral twitter feed (thus using GLA resurces) and was cnsidered t be seeking t affect party plitical supprt. Sanctin applied was fr the mnitring fficer t speak t the Mayr abut his respnsibilities under the cde. Click here fr a link t the case. Cuncillr Sharratt APE 0458 Suth Ribble Brugh Cuncil The member was a jurnalist wh published a small jurnal. The member neither claimed nr gave the impressin f acting as a representative f the cuncil. The magazine was published fr fun, and a member f the public wuld be in n dubt, the panel said, that the jurnal was nt a matter that was the business f the cuncil.
6 The Standards Cmmittee accepted the argument that Cllr Sharratt used the magazine t cnduct public discurse n the cuncil and party issues, and that his activities n the cuncil, the magazine and the party were seamlessly cnnected. Hwever, the First-tier Tribunal disagreed. It said the decisin in Livingstne (Livingstne v APE (2006) EWHC 2533) referring t activities which are apparently within the perfrmance f a member s functins shuld be narrwly cnstrued. The appeals tribunal rejected the finding f the standards cmmittee and cncluded there had been n breach f the Cde. N breach. Click here fr a link t the case. Cuncillr Barnbrk APE 470/471 Lndn Brugh f Barking and Dagenham The member appealed the decisin f the standards cmmittee f the Lndn Brugh f Barking and Dagenham. The member published a vide n a website cncerning statements abut knife crime that were inaccurate. The key questin cnsidered by the tribunal was whether the member was acting in his fficial capacity when making the vide. There was n evidence t supprt the psitin that the member was cnducting the business f the Cuncil and the parties did nt put frward any arguments t this effect The Tribunal was drawn t the cnclusin that the making f the vide was nt prximate enugh t the rle f member s as t bring him int the ambit f acting in his capacity as a member. The Tribunal cnsidered the fllwing factrs in reaching its cnclusin: The member was making a vide n behalf f the BNP with its primary purpse being party plitical; He was nt identified as a member fr the Lndn Brugh f Barking & Dagenham; He was nt taking frward an issue relevant primarily t the Lndn Brugh f Barking & Dagenham; He was nt taking frward an issue n behalf f an individual cnstituent; and, The vide dealt with a range f issues and the Appellant did nt cncentrate upn issues within the Lndn Brugh f Barking & Dagenham. N breach. Click here fr a link t the case. Other issues t cnsider There are als cnsideratins apart frm the Cde that shuld be taken int accunt when using nline media. The fllwing is a brief guide t sme f the legal pitfalls(2) in establishing persnal blgs. Almst all f these can be
7 avided if yur nline cntent is bjective, balanced, infrmative and accurate. In the main, yu have the same legal duties nline as anyne else, but failures t cmply with the law may have mre serius cnsequences. Libel If yu publish an untrue statement abut a persn which is damaging t their reputatin they may take a libel actin against yu. This will als apply if yu allw smene else t publish smething libellus n yur website if yu knw abut it and d nt take prmpt actin t remve it. A successful libel claim will result in an award f damages against yu. Bias and Predeterminatin If yu are invlved in determining planning r licensing applicatins, yu shuld avid publishing anything n yur blg that might suggest yu have already made up yur mind abut a matter yu may be invlved in determining. Otherwise, the decisin runs the risk f being invalidated. Cpyright Placing images r text n yur site frm a cpyrighted surce (e.g. extracts frm publicatins, phts etc) withut permissin is likely t breach cpyright. Avid publishing anything yu are unsure abut r seek permissin in advance. Breach f cpyright may result in an award f damages against yu. Data prtectin Avid publishing the persnal data f individuals unless yu have their express written permissin. Obscene material It ges withut saying that yu shuld avid publishing anything in yur blg that peple wuld cnsider bscene. Publicatin f bscene material is a criminal ffence. Cnclusin Blgging and scial netwrking are excellent ways t engage a wider audience. In rder t blg successfully, yu shuld ensure that yu cmply with the Cde and any ther legal requirements. It is als imprtant t nte that, the ethical use f nline scial media is nt limited t what is cvered in the Cde. Yu shuld als cnsider the Ten General Principles f Public Life. While yu may nt be investigated r
8 censured fr using nline media in certain ways, yur cnduct might still be viewed as less than exemplary and attract adverse publicity fr yur ffice and authrity. Helpful links: Yu can find further guidance and infrmatin n blgging and scial netwrking as a member frm the surces belw: Blgging quick guide Official capacity quick guide a resurce fr blgging members a primer fr harnessing scial media fr scial gd IDeA s Cnnected Members: A guide t using scial media (1)These cases were heard during the perid where the Adjudicatin Panel fr England was in peratin. The functins f the Adjudicatin Panel fr England have nw been transferred t the First-Tier Tribunal (Lcal Gvernment Standards in England) and the Adjudicatin Panel fr England has been ablished. (2) This sectin is based n material prduced by and with the permissin f Victria McNeill, Head f Legal at Nrflk Cunty Cuncil.