GPs and practice staff are increasingly facing abuse from patients posted on social media.
In general, where a patient’s conduct is regarded as unacceptable when you meet them face-to-face, then it should also be considered as unacceptable for them to behave that way online.
We set out actions below that staff can take to have the unwanted communication taken down and/or to take action against the patient.
There is no legal definition for abuse but for the purposes of this guidance it includes online behaviour by patients or their friends and family directed at practice staff, which is unwarranted and deliberately intended to upset, threaten, bully or otherwise cause distress and aggravation.
Online abuse occurs when a patient uses a device (eg a computer, tablet, mobile phone) to send abusive messages over the internet.
This can occur anywhere online, including through:
- social media
- texts and messaging apps
- online text chats
- live-streaming sites.
If a person is subjected to two or more connected abusive posts online, which cause them distress or alarm, the treatment may amount to unlawful harassment.
If the average person would consider that the patient’s behaviour online would be likely to cause 'distress' or alarm, then it is likely to constitute unlawful harassment.
A person who is the victim of harassment can take action under the criminal law and the civil law (see below).
Practical steps to deal with online abuse and harassment
It is important that practices are able to support members of staff who are the victims of online abuse.
Practices should provide sufficient information and advice to individuals about their rights and the risks associated with any course of action they might want to take, to enable them to objectively consider the advantages and disadvantages of the options.
Practices should develop a policy on dealing with online abuse. This should be discussed with staff and used in a consistent way to avoid potential employment rights claims.
If a member of practice staff receives an unwanted online communication, we suggest the following course of action.
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Record
- Keep a record of the post or message and try and identify the patient from that or other posts.
- Collect and record any other information that might help later, eg taking a screenshot or saving the post.
- Staff must not ask questions about the patient online or search through patient files to identify them. If in doubt, speak to your DPO (data protection officer).
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Report
- Report any online abuse incident to your practice manager and/or DPO.
- Telling somebody will enable them to support and advise you, which can provide a sense of empowerment and quickly resolve the matter.
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Investigate
- Where the patient is known, this should be reported to the practice manager and the DPO for investigation before any response is made.
- Abusive behaviour online may be unintentional, for example, it may be that the patient is unable to articulate something in the proper way. They may have a disability which has had an impact on their behaviour.
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Act
- Where a post is annoying but otherwise poses no harm and it fails to attract attention online, it is often better not to respond, as the response can aggravate the situation and attract a wider audience.
- In other situations, a quick response, using the right tone, can be the most appropriate action and can be more powerful than the initial post.
- Once you have identified the author of the online message and you have decided that it is appropriate to contact them to try to remove the message, you can write to the person, using this template letter.
- You could discuss with your LMC, medical defence organisation, or CCG communications team engaging a PR specialist to help with the response if it warrants it.
- Staff should not to be tempted into an immediate response, but to seek advice on the benefits and risks involved before doing so. View the social media platform's guidance as a minimum (see 'Reporting abuse to the platform provider' below).
Formal action
- Where the abuse has been posted anonymously and/or significant harm has been caused, formal action to identify and stop further posts and have the original post taken down may be required.
- In these circumstances, you should contact your DPO, who can help to identify the abuser.
- Once identified, the practice can take advice from the ICO’s helpline and/or it can take legal advice on contacting relevant authorities and the courses of action open to the practice and individuals involved.
- Depending on the circumstances, the process may involve contact with the police and the owners of the online platform where the abuse was carried out.
- In many cases, it will not be wise or appropriate for the victim of the behaviour to deal with the patient directly.
- Legal advice may be required by the practice to determine the best course of action - practices should then review their insurance policies to identify if legal expenses cover is available.
Reporting abuse to the platform provider
Online platform providers can have limited responsibility for information posted on their platform, particularly where they do not manage the content.
The Defamation Act 2013 removed internet and online services providers' liability for the content posted on their platforms.
This exemption does not apply where the victim of the abuse is unable to identify the person who posted the comment online, the victim has sent a notice of complaint to the provider and the provider failed to respond to the notice (see defamation below).
Website and platform hosts also follow the same Act.
Social media platforms have policies on, and make it a condition of use, that using the platform to post defamatory content, harass people, or to infringe third-party rights is prohibited. Breaching this allows the platform to remove or block content, or ban a user temporarily or permanently from the platform.
Providers have easy ways for people to report content and get it removed or the user banned.
Unfortunately, users do not always get the outcome they want. A service provider can deem the content as being no more than annoying, or mildly upsetting, and will often fail to take action.
Find policies on reporting content from the below providers:
Refusing to treat abusive patients
Involving the police and criminal sanctions
It must always be an individual’s decision whether to involve the police. The criminal law relating to online abuse is complex, investigations and prosecutions can be protracted and be stressful to the victim.
Threats
The Malicious Communications Act 1988 and the Communications Act 2003 make it an offence for a patient to send online messages or posts that contain threats, grossly offensive, obscene, menacing, or false information, where the sender’s intention is to cause the recipient distress or anxiety.
To successfully prosecute this offence, the CPS (Crown Prosecution Service) must prove that the unwanted communication is more than disturbing, offensive or shocking. It must be grossly so.
False information
It is also an offence for a patient to post a communication on social media that they know to be false. The CPS must prove to the criminal standard of 'beyond reasonable doubt' that the patient knew the information was false and that the purpose of the post was to cause annoyance.
The CPS must additionally show that it is in the public interest for it to do so, which can be problematic in cases where, for example, the patient has mental health issues.
Conviction for these offences carries a term of imprisonment, a fine or both.
Harassment
The Prevention of Harassment Act 1997 provides a remedy for the more serious offences of criminal harassment.
These offences are committed by a patient who causes a staff member fear or distress and the patient knows or ought to know that their conduct is harassment.
Where, as a result of online abuse, the patient’s action puts a staff member in fear of violence, that patient faces up to five years imprisonment.
Reporting abuse to the police
On a practical level, even where there is little or no prospect of getting a conviction, staff should consider reporting the abuse to the police.
They will formally record the incident (in case of a re-occurrence of the abuse in the future) and the report could result in the patient being visited by a uniformed constable. This can be sufficient to end the abuse.
Civil action
Under the Protection from Harassment Act, the harassed individual may also bring a civil claim for compensation.
Ordinarily the victim of the harassment would instruct lawyers to start legal proceedings against the harasser. This is called a civil harassment claim and is a separate legal process to criminal prosecution for harassment (described above).
A person may consider a civil claim where the police are unable to get sufficient evidence to prove the criminal offence ('beyond reasonable doubt'). Or, where there is sufficient evidence but the CPS do not believe it is in the public interest to prosecute.
There is a less stringent standard of proof required in civil harassment claims: the claimant must prove their case on the 'balance of probabilities'.
This means they must persuade the court that it is more likely than not that the offence was committed.
The high cost of a civil claim will ordinarily only be justified where the harassment has caused serious physical or psychological harm and the level of financial compensation being claimed is high as a result.
The courts and service providers have struggled to find ways to tackle the issue of individuals retweeting and sharing abusive messages.
This is partly because individuals creating or sharing abusive content online can go to significant lengths to anonymise themselves. They can operate outside the UK, making it difficult to properly identify them.
In addition, it can be difficult to prove that a particular sender intended the message to cause harm, which is a key requirement for most legal action.
The result of this is that the criminal law is generally ineffective against those who share abusive content. A claim by the victim(s) of the behaviour under civil law may be available but the potential compensation often cannot justify the very high cost of the legal action.
Defamation can include comments that damage a staff member's professional reputation or otherwise lower that person in the eyes of those reading the communication.
This could be by criticising their professionalism or character, making unsupported comments about a GP’s skills, or alleging unethical practice.
Defamation occurs if the content of the communication adversely affects a person’s reputation and GPs, their staff and the practice itself could have a right of action against the patient.
To be defamatory, the online content must:
- first be published within the previous 12 months
- lower the staff member in the estimation of right-thinking members of society
- have caused, or is likely to cause serious harm to the staff member
- not be true or a reasonably, honestly held opinion.
Malicious falsehood provides a similar but separate cause of action to defamation.
Malicious falsehood covers the situation where the patient has posed untrue and damaging material online with an improper motive. As a result, the staff member who is the target of the abuse has suffered financial loss.
Unlike defamation, with malicious falsehood the staff member will need to show that they have suffered financially quantifiable damage.
Harassment, defamation and malicious falsehood are complex areas of law. GPs will need to take legal advice on whether they are able to use remedies that include getting an injunction preventing the patient from posting further abuse and/or claiming damages.
However, the cost of pursuing these remedies is often great and practices should seek specialist advice on the risks and benefits of doing so.
Unfair online reviews
Inaccurate and unfair comments on websites such as the NHS website and patient.info can damage the reputations of providers and their staff.
This guidance outlines the law of defamation, and steps that can be taken to have such comments removed.
Online safety bill
The Government has published a draft Online Safety Bill, which is currently going through a period of parliamentary scrutiny before being laid before parliament in the 2021-22 session.
Under the Bill, online service providers will be subject to new duties to minimise abusive content on their platform and have timescales for the removal of that content.