Social media and electronic messaging – offensive content in both private and professional messages risks a referral.

Social Media and electronic communications have made life easier and faster for all of us. Information is readily accessible and people can immediately react to news, but with that comes the danger that an ill-considered comment or intemperate language, quickly becomes available to a wide audience.

Regulated professionals are, at all times, expected to meet the standards of their profession and to behave in a way that upholds the reputation of their profession and maintains the trust and confidence of the public.

The various professional regulators provide guidance on the use of Social Media, although a number of people have found themselves before their regulators, and in some cases before the criminal courts.

It is not only professional communications but also private messages that can become subject to scrutiny. In addition, as the cases below demonstrate, there can be criticism if inappropriate posts or grossly offensive messages are not challenged and / or reported by a recipient.

R (on the application of Dr Fijten & others) v GMC (2020) EWHC 3800 (Admin)

Ten doctors renewed an application for permission to apply for judicial review of decisions by the GMC case examiners to refer them to the Medical Practitioners Tribunal (MPT). The doctors were all members of a closed, encrypted WhatsApp Group but as a result of a police investigation into a third party, messages between the group were referred to the GMC.

The allegations related to the contents of some of the messages, or attachments, and each doctor’s failure to remove himself from the Group, or to report the contents of the messages or attachments to the GMC, the police and / or their respective employers [9].

Mrs Justice Eady stated:

‘I note that, in reaching their decisions, the case examiners had regard to the GMC’s statutory objectives, which included the promotion and maintenance of public confidence in the profession and the promotion and maintenance of proper standards and conduct for the profession. As the claimants accept, private communications are not exempt from consideration in professional disciplinary proceedings. In my judgement, it is unarguable that a professional body must be entitled to seek to uphold proper standards with the profession, even in relation to what would otherwise constitute private conduct. Given the safeguards that remain under MPT procedures, it is fanciful to suggest that it would be other than a proportionate inference with the claimants’ Article 8 rights for this matter to be referred to the MPT’ [21].

Benjamin Thomas v The Education Workforce Council (2021) EWHC 2774 (Admin)

When the appellant was informed by email that he had been unsuccessful in his application for a teaching post, he responded from his email account “Go fuck your self”. He appealed against the finding that this was unacceptable professional conduct, meriting a reprimand.

Mr Justice Johnson stated:

‘The FPC was right to find that the language used by the Appellant was “wholly inappropriate and unacceptable in a professional capacity. It was entitled to give weight to evidence that the recipient of the email had been upset, and to find ‘a degree of moral blameworthiness in sending an offensive and inappropriate email of this nature in a professional capacity” [48].

The appeal was dismissed.

The Independent Office for Police Conduct (IOPC) has the following reports published on the website:

(i) On 17th December 2021, PC Harry Chandler, a Metropolitan police officer was dismissed without notice after gross misconduct had been found proved at a disciplinary hearing. PC Chandler admitted using a racial remark in a WhatsApp exchange with another police officer regarding which area of London to live in. The message was found during the investigation into the photographs taken by former Metropolitan Police officers Jamie Lewis and Deniz Jaffer at the scene of the murders of Nicole Smallman and Bibaa Henry. PC Chandler’s comment was found on the mobile phone of Jamie Lewis, whose failure to challenge the message was among the allegations he faced at an accelerated hearing when he was dismissed from the police force following his conviction for misconduct in public office.

In a statement Regional Director Graham Beesley said of PC Chandler ‘His dismissal today sends a clear message that the use of offensive language, whether on or off duty, is wholly unacceptable’.

(ii) In August 2021, Sergeant Geraint Jones, a Devon and Cornwall police officer, was given a final written warning, to remain in place for five years, by a police disciplinary panel for sending a grossly offensive image, a meme related to George Floyd, to a WhatsApp group that included other police officers and staff. One of the members of the WhatsApp group reported the image and the matter was investigated. PS Jones admitted gross misconduct and was found to have breached the professional standards of authority, respect and courtesy, equality and diversity, duties and responsibilities and discreditable conduct.

Another sergeant, who was part of the WhatsApp group, was made subject to reflective practice procedures for not reporting the matter straight away.

The IOPC commented ‘The outcome is a reminder that the sharing of offensive material by any serving police officer is unacceptable, and that individuals will be held accountable. It is important that officers understand that whether such behaviour occurs on or off duty, or in a public or private social media network, inappropriate and unprofessional conduct has serious consequences’.

PS Jones was charged with a criminal offence contrary to section 127 Communications Act 2003 in respect of the same image. He was acquitted at the Plymouth Magistrates Court on the 21/4/21.

There will be many different views and perspectives on the issue of whether it is appropriate for the content of private messages, particularly within a closed group, to be referred to a regulator. It will of course always be very fact specific. However, it is encouraging to see from the reports above, that grossly offensive comments and messages, even within a private group chat, are not being tolerated.

In Crucible we have noticed an increase across the regulators in decisions made on the basis of pulic interest. This is a topic that we intend to explore further as part of our webinar series.