Social media use for RICS Members: it’s not what you say, it’s how you say it

As a RICS Member, you will be well aware of the need to act with integrity in your role, whether it be valuing or developing land, communicating with clients or protecting client money.  But what about your comment on an amusing article on LinkedIn on your commute home from work, or that late Saturday night Tweet on an issue that’s been bothering you all week?  Could your social media comments have any impact on your professional standing?

In this article we explore whether and when you may face a RICS investigation or disciplinary action in relation to your use of social media, and what to do if an ill-judged post comes back to haunt you.  

Which Rules of Conduct are relevant?

The RICS Rules of Conduct are drafted sufficiently broadly that no fewer than three rules could be breached by an unwise social media post. 

Rule 1 requires members and firms to act with integrity, Rule 4 states that you must treat others with respect and encourage diversity and inclusion and Rule 5 requires you to maintain public confidence in the profession.  A post which could be seen to harass or victimise someone (even if that was not the intention) could contravene all three of these rules. 

Does this mean I can’t express my opinions?

In a word, no.  There is a right to Freedom of Expression under Article 10 of the European Convention of Human Rights: 

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

However, this is not an absolute right.  The exercise of the right to Freedom of Expression may be restricted where the restriction is:

(a) prescribed by law;

(b) pursuant to a legitimate aim; and

(c) necessary in a democratic society.

The Courts have found that a regulatory or professional body may, in pursuit of legitimate aims (such as safeguarding the public and upholding confidence in the relevant profession), interfere with the right to Freedom of Expression of its members or registrants.

In short, if you make a comment on social media which could undermine public confidence in the profession, RICS may bring disciplinary proceedings against you, provided this is necessary and proportionate. 

Where is the line?

Unfortunately, there is no “bright line” as to when RICS might intervene in relation to comments made by a member in a public forum – it is very much a judgment call based on the facts of an individual case.  However, we have set out below some helpful guiding principles.

1.Posts which identify, or are connected with, your profession may attract more scrutiny

RICS is more likely to become involved where social media posts are made in a way which is connected to your profession: for example, posts on a Linked In account which identifies you as a chartered surveyor and/or member of RICS, as opposed to those made on a purely personal platform.  This is because these connections mean that your comments are more likely to undermine public confidence in the profession. 

For the same reason, posts which are made in an “open” forum, which can be viewed by the world at large are more likely to lead to a regulatory investigation than those made within a closed or private group. 

In the case of Beckwith v Solicitors Regulation Authority [2020], the Court commented that the relevant principles for the profession of solicitors “may reach into private life only when conduct that is part of a person's private life realistically touches on her practise of the profession…or the standing of the profession”.

However, RICS has made it clear in its Social Media Guidance, that even social media posts made in your personal capacity may fall within the remit of its regulation “particularly if extreme or highly offensive views are expressed such as may cause reputational damage to the profession”.

2.The language used may be more important than the views expressed

As demonstrated by the cases below (emphases all mine), the focus for RICS may be not so much on what you say (within reason), but on how you say it.

In the case of R (on the application of Ngole) v University of Sheffield [2019], the Court commented that: “the obligation to maintain confidence cannot extend to prohibiting any statement that could be thought controversial or even to have political or moral overtones…. The expression of such views in offensive language, however, might well damage confidence…In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.

Similarly, in Diggins v BSB [2020], the Judge concluded that the focus of the Panel “quite properly … was not so much on the message as the likely effect of the florid language employed to express that message”.

In GMC v Harrop [2021], the Tribunal stated “…it is important that caution is exercised, particularly in the manner, language and tone that is used. When a registered practitioner strays into inappropriate, insulting and—as in one admitted allegation in this case—intimidating behaviour, that falls outside the qualified right to free speech and risks bringing the profession into disrepute”.

In Holbrook v BSB [2022], The Panel concluded that “…given the importance ascribed to freedom of expression in the authorities….it follows that, for the expression of a political belief to be such that it diminishes the trust of the public in the particular barrister or in the profession as a whole will require something more than the mere causing of offence…..[it would need to have]  gone beyond the wide latitude allowed for the expression of a political belief, particularly where the speech was delivered without any derogatory or abusive language and the objection was taken to the political belief or message being espoused, rather than the manner in which that belief or message was being delivered”.

While the above authorities relate to other regulatory bodies, the principles apply equally to RICS cases.  These cases indicate that it is unlikely that it will be necessary or proportionate for RICS to raise allegations against you for simply making a comment which could be controversial, unless it is expressed using inappropriate language or is discriminatory, dishonest or abusive. 

The key takeaway is that if you want to comment on something which may be controversial, you should do so using language which is respectful and appropriate and which doesn’t contain any racist, sexist, defamatory or insulting content. 

3. Ask yourself: would I say this to someone’s face?

A good test is simply, would you say this to someone to their face, using the same language?  This point is made by RICS in its Social Media Guidance: “The standards expected of members do not change because they are communicating through social media rather than face-to-face or (through) other traditional media”. 

If you have posted without thinking, and questions are raised by your employer or by RICS, it would be worth considering whether to remove the post in question.  In its Social Media Guidance, RICS has said that it is unlikely to start an investigation about a social media post that is removed if a member receives a request to do so. 

If you receive a letter from RICS about your use of social media, please do contact us and we would be happy to help: seeking early advice will give you the best chance of a favourable outcome.

FURTHER INFORMATION

For further information on the issues raised in this blog post, please contact Lucy Williams, Julie Matheson or a member of our regulatory team.

 

ABOUT THE AUTHORS

Lucy Williams is Legal  Counsel in the Regulatory Department with a particular specialism in legal, healthcare and financial regulation. Lucy acts for several regulators, both in professional disciplinary matters and in providing advice on policy issues. Lucy has prosecuted and defended a wide range of regulatory cases, from simple conviction and misconduct matters to cases of dishonesty and sexual misconduct to complex clinical cases and allegations involving financial maladministration.

Julie Matheson is a partner in the Regulatory Team. Her expertise lies in advising professionals and professional services firms, particularly in the accountancy, audit and built environment sectors, on regulatory compliance, investigations and enforcement proceedings.