Social Media Auditing

There are many, many great things that the UK has adopted from the US.

The telephone (aff. link), Post-it notes, dental floss, cinema, international air travel, Family Guy and the Sausage & Egg McMuffin all spring to mind.

Sadly, today's topic is a slightly less desirable import from the land of opportunity - social media auditing.

In my recent article about section 50 of the Police Reform Act 2002, I fleetingly mentioned the YouTube channel of a prominent social media auditor. Since then I have received several requests for further information about the current craze of social media auditing.

In today's article I will discuss the legalities of social media auditing in England and Wales, although I don't think there is much variation in the other jurisdictions of the UK.

Background:

In the US there is a popular, growing movement of individuals seeking to test and assert their First Amendment constitutional rights to freedom of assembly, speech and expression.

Members of this group, who are commonly referred to as auditors, attend Government sites in an effort to gauge how accommodating the staff are of their constitutional rights. Auditors often film or take photographs (aff. link) of their interactions with staff and upload them to social media, hence the term social media auditing.

Over the last decade or so the trend of social media auditing has increased in the UK. On this side of the Atlantic auditors are, in the broadest terms, seeking to test and assert their analogous rights under articles 10 and 11 of the European Convention on Human Rights, as enshrined in the Human Rights Act 1998. More specifically, many auditors are seeking to assert their right to film or photograph in a public place.

Photography and videography in public places:

In England and Wales people have a general right to film or take photographs in any public place. They do not, however, have an automatic right to enter, film or take photographs in any private place.

The phrase "public place" is defined differently in numerous pieces of legislation, but the definition on which most auditors rely is that contained within section 9 of the Public Order Act 1936 (as amended), namely:

• "Public place" includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.

This includes places that are open to the public without restriction - e.g. open roads, streets, open access countryside - as well as those places where the public has an implied right of access - e.g. supermarkets, libraries and public rights of way across privately-owned land.

About trespass:

Privately-owned property (e.g. a supermarket) can have an implied public right of access, which allows members of the public to enter and go about their legitimate, lawful business (e.g. shopping). However, the owner or their representative can remove that implied right of access by telling a member of the public to leave. If they refuse to do so, they become a trespasser.

Furthermore, the landowner or their agent can impose conditions of entry on any member of the public exercising an implied right of access. If the member of the public refuses to comply, they can be asked to leave. Again, if they refuse, they become a trespasser.

Trespass in these circumstances is a civil wrong (tort) and not a criminal offence. In the case of sustained or repeated trespass, which is pretty unlikely in the case of auditing, the only legal remedy available to the landowner is to sue the trespasser for any losses incurred or seek an injunction to prevent reoccurence.

Having given clear warning, the landowner or their agent also has a common law right to physically eject a trespasser from the property, as long as they use minimal force to do so. This requires careful consideration, given the possibility of legal repercussions if excessive force is used (read a case study about the use of force of eject a trespasser - spoiler alert: the trespasser lost). 

To muddy the waters even further, a publicly-owned property can be deemed a private place that has no public right of access, either implied or otherwise.

A prison, for example, is quite clearly a private place that is not publicly-accessible, despite being publicly-owned. Similarly council offices, save for those areas designated for the reception of members of the public, are private places that are not publicly-accessible, despite being publicly-owned. Likewise schools, save for those areas designated for the reception of members of the public, are private places that are not publicly-accessible, despite being publicly-owned.

It should also be stated at this juncture that an open gate or door, unless leading to an area designated for the reception of members of the public, does not automatically imply there is a public right of access.

On a warm summer's day, I might leave the door to my home or workplace propped open for ventilation (aff. link), but that does not mean there is an implied right of access for any passing member of the public who fancies a nosey inside. To be blunt, only an idiot - and the average social media auditor - would consider otherwise.

The absence of signs saying "private property", "no public access", "keep out" and the like does not mean there is an implied public right of access.

As previously mentioned, trespass is not normally a criminal offence, save for a few notable exceptions relating to sites of national security, the railway and defence land with byelaws in place.

Trespass can become a criminal offence if a person enters non-publicly-accessible property and causes any intimidation, obstruction or disruption to others engaged in lawful activity there. This is explained further in my article about aggravated trespass.

It has to be said that the concept of trespass, for obvious reasons, hurts the head of the average social media auditor.

Auditing in action:

Auditors attend a property that they perceive there is a public interest in visiting, in order to establish if the staff respect their perceived right to visit, film or take photographs. This may well be an official Government property - e.g. a police station, fire station or council offices - but auditors are increasingly targeting private property - e.g. factories, car dealerships and call centres.

If the auditor remains in a public place, or one where there is an implied public right of access (and no conditions of access to the contrary), then this is perfectly legal. In this situation, it is perfectly legal for the auditor to film or photograph anything they can see. They should be allowed to go about their business unchallenged and unhindered.

If, however, they enter a private place, or one where there is no implied public right of public access, then they have no legal right to be there. In this situation they are likely to be challenged by staff, who may well be curious or concerned about their presence.

An increasing number of auditors are using small drones, such as the DJI Mini 4 Pro (aff. link), to obtain footage. As long as they are complying with all the relevant CAA regulations, this too is perfectly legal.

Official guidance issued by the National Protective Security Agency (NPSA) states the following: "Auditors take advantage of the understandable concerns from personnel when staff premises are photographed or filmed.

"Auditors often attempt to provoke staff and security in order to elicit heightened reactions, at times asserting that staff are overstepping legal boundaries. They are well versed in their own rights and frequently cite legislation when challenged."

Although, as mentioned earlier, an auditor may well be incorrect with regard to their own rights and interpretation of legislation.

Many auditors are perfectly civil and reasonable in their interactions with staff, but some have cottoned on to the fact that if they actively seek confrontation - perhaps by refusing to leave, becoming irate and abusive - it makes for a more popular video, with greater revenue earning potential. 

In addition to the offence of aggravated trespass, these hostile auditors run the risk of committing offences under the Public Order Act 1986 and Public Order Act 2023, depending on the audit location. Furthermore, should they revisit the same site on a second occasion, as some auditors are bold enough to do, they could end up interacting with the same staff and committing offences under the Protection from Harassment Act 1997.

The very worst auditors, which are sadly increasing in number, actively antagonise staff into responding unlawfully, with the intention of making lucrative civil claims after the event. They may also selectively edit their footage to portray the member of staff or organisation in the poorest possible light.

Dealing with auditors:

The NPSA guidance recommends that any member of staff interacting with an auditor uses the CALM approach:

• C: Chat in a friendly manner;
• A: Assess for hostile intent;
• L: Limit interactions beyond what is necessary;
• M: Monitor risk of escalation;

It reminds staff of the importance of remaining polite and professional, as the auditor may be seeking to escalate the interaction for the sake of social media popularity.

An auditor who is politely asked to leave and then totally ignored by staff, is less likely to hang around a "boring" property where there is no interaction.

The guidance also mentions that the initial tone of any interaction can have a big impact on how the auditor responds. A cheery "Hello there, I notice you're filming. Is there anything I can help you with?" is likely to give a better outcome, with less chance of escalation, than "Hey, you - you shouldn't be here. Piss off".