Should public servants be relying on the courts to clarify their right to use social media?

About eighteen months ago the APSC released updated guidance for the use of social media by public servants.

Designed to cover personal and professional use, the guidance was widely criticised at the time by traditional media and former public servants for its imprecise language and broad reach.

I criticised it as well, and it was one of my motivations for leaving the public sector, as it was for several other people I know.

In particular criticisms related to one piece of the guidance that states that when APS employees are making public comment in an unofficial capacity, it is not appropriate for them to make comment that is, or could be perceived to be:

so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially. Such comment does not have to relate to the employee’s area of work

so strong in its criticism of an agency’s administration that it could seriously disrupt the workplace. APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate

The APSC has provided a few (broad) case studies designed to help public servants navigate use of social media, within their definition of appropriate conduct.

However terms such as ‘so harsh and extreme’ have remained largely undefined and subject to the interpretation of senior public servants – which unfortunately has left them open to accidental and deliberate misuse, potentially for bullying or internal politics.

I’ve long advocated that for the public service to improve its use of social channels it needs to foster and support staff in using those channels – professionally and personally as well as officially.

If the public sector doesn’t firmly embed social media use into the culture of agencies, it will find it increasingly difficult and expensive to match Australian society’s preference for communication via social channels and be less effective at carrying out the instructions of the government of the day.

Imprecision is the enemy of adoption. It has remained unclear what is meant by terms such as ‘harsh or extreme’, ‘so strong’ and ‘seriously disrupt’, leading public servants to either avoid participating online, carefully self-censor or to conceal their identities.

Now we’re beginning to see some of the fruits of that imprecision, in the case of Michaela Banerji who reportedly used the Twitter identity @LaLegale. Ms Banerji has lost a court case to stay her dismissal from the public service, partially related to comments made by her pseudonymous Twitter account.

I’m not casting judgement on the case decision itself. While Marcus Mannheim’s article, Public servant loses fight over Twitter attack on government, focuses on Twitter, there’s some indication there were other issues as well. Ms Banerji was directly and publicly criticise the policies of her own department and there’s been clear and precise guidance for quite some time that this is highly dangerous territory.

However I wonder how the department identified @LeLegale as Michaela Banerji – there would be serious privacy considerations if the Department were investigating other pseudonymous Twitter or other social media accounts to determine who owns them, regardless of whether they then took any actions as a result.

I am also concerned that this had to go to a court decision (albeit one brought by Ms Banerji). Agencies have had a number of years to write social media policies and education staff as to their responsibilities and what constitutes appropriate conduct online – however there’s not been any research released publicly indicating whether they’ve done this in an effective way.

I do support the need to put boundaries as to how far public servants can criticise agency operations and government policies related to their work (and only those related to their work – unlike the current guidelines).

However I don’t think that public servants should need to ever go to court to clarify their right to privately use social media channels for political comments.

The social media guidelines for public servants need to be clearer, and the policies and training supporting the guidelines need to be implemented consistently and effectively.

Otherwise we all lose.