Since Elon Musk walked into Twitter HQ holding a basin and asking people to ‘let that sink in, ‘ we have had clients ask about debt collection via social media platforms. In buying a loss-making company and prioritising ‘helping humanity’ over a return on investment, the self-titled Chief Twit is either the epitome of philanthropy or making the biggest bluff in corporate history! But we digress…clients have been eager to know how commercial debt collection works in the world of social media, which we’ll now delve into.
Social Media and Privacy
First, let’s look at the private and not-so-private nature of social media. Twitter is public by default, focusing on images and a 280-character limit. This keeps communication short and concise. Privacy is afforded through Direct Messages (DMs). Facebook is geared towards groups of like-minded individuals. Users can decide what is public, what friends can see, and what friends of friends can see. Conversations in groups can be restricted to members only, affording privacy from the wider public. DMs are a key function.
The picture-sharing platform Instagram was born on iOS before it embraced Android. Like Twitter, settings can be made private, but it is a public-oriented platform. Snapchat similarly uses pictures and videos but is focused on private messages or a selected audience. WhatsApp utilises all media formats for direct messaging and group conversations. LinkedIn is a social media platform for employees and businesses. At last count, there are 133 social media platforms, each offering a different take on content and privacy. As hackers and their victims know, end-to-end encryption is no guarantee of information remaining private.
GDPR and PECRs
In the UK, there are two sets of regulations regarding how data is stored and processed for B2C and B2B communications. General Data Protection Regulation (GDPR) dictates how data is used, stored and secured. Privacy and Electronic Communications Regulation (PECR) dictates privacy rights for electronic marketing and telecommunications.
No debtor is going to opt-in to receiving an email from a debt collection agency, so with that logic, most people think contact is unsolicited. In the context of GDPR and PECR, this can only hold true for direct marketing, otherwise known as those emails, phone calls and faxes trying to sell random products! Debt collection is about collecting payment for goods/services rendered instead of offering something for sale. Because consent to be indebted has already been established through the sale, being chased for payment is a natural consequence. Before you start sliding into the debtor’s DMs, there is a big difference between email and private messaging. GDPR and PECR only permit DMs for marketing purposes between two businesses using publicly available contact information. Although GDPR only applies to personal data, you may still be required to honour opt-out marketing requests under PECR. There is no direct reference to debt collection in GDPR and PECR.
Regulations focus on what can be done inside the box, so by default, there is no scope in the UK for debt collection via Twitter. Speak to any lawyer, and you’ll find that what legislation doesn’t say is just as important as what it does. Posting about a debtor not paying on social media can quickly turn into Defamation, of which the 1996 and 2013 Acts make it open season for litigation and damages. One notable exception, albeit pre-social media and without current precedence, is Derbyshire County Council v Times Newspapers 1993, when the former sued the latter for libel over a piece about how council funds were spent. The case brought by DCC was thrown out because censoring government criticism would be damaging to free speech. In theory, at least, government bodies are fair game to debt collection via Twitter, but it comes with a major caveat of being untested in contemporary law. Consumers are afforded considerably more protection in both regulations and legislation than government bodies and businesses. Citizens Advice specifically lists being pursued on social media as a form of harassment.
Complaints
Before social media, the repercussions of a bad customer experience were limited to the individual’s social circle. These days, complaints can be made on social media for the entire world to witness. Even complaints starting off as innocent DMs can end up going public if the desired outcome is not reached. As comedian and consumer rights advocate Joe Lycett has repeatedly shown, championing the injustice of a mishandled C2B grievance on social media can force a business to make amends.
There is almost a double standard here. Individuals can air their dirty laundry with a company in public, but because of consumer protections and companies not being physical beings, businesses cannot air their grievances about an individual. GDPR and PECR see to that. Social media’s greatest caveat is that disputes, opinions and actions can fall victim to the scrutiny of misinformed keyboard warriors and power-tripping trolls.
Debt Collection Messages
In November 2021, the Consumer Financial Protection Bureau (America’s version of our Financial Conduct Authority) put live legislation allowing creditors to chase debtors by SMS and DMs. The CFPB has made clear that messages must be private. They cannot be littered on someone’s Facebook wall or Twitter feed. Americans can opt out of the messages but do not need to give consent to be contacted in the first place. Concern has been raised over the use of hyperlinks to opt out and how it can be difficult to decipher a genuine link from that of fraudsters doing a spot of phishing. The CFPB has not stipulated limits on the number of SMS and DMs an individual can receive. In a change to telephone chasing, individuals can now receive a maximum of 7 calls per week per debt collection. These changes were brought in to update pre-internet and pre-social media legislation. In the Land of the Free, debt collection via Twitter is now a reality.
Inherited Rights
All eras, political dynasties and generations have their defining moments from which history casts judgment. At Advocate, we know better than most how imparted EU laws from 1973-2020 were tilted in favour of the debtor, but as the UK now sits uncoupled from the EU, there is less red tape preventing CFPB-style legislation from being adopted. The 2016 referendum triggered more than just Article 50. It created an era that has been sustained through equally unprecedented national, global and economic events. So, to rule out debt collection via Twitter in the years ahead would be as naïve as dismissing the 48% as irrelevant.