Making social media legally safe for all

Social media is the new frontier of bad behaviour. Whether it is misrepresenting the capacities of an organisation (Australian Competition and Consumer Commission v Allergy Pathway [2011]), the Commonwealth Bank of Australia requiring its employees to rectify inappropriate postings by friends or even strangers made about the bank, personal blogs describing her employer’s investigation offensively and incorrectly, (Dover-Ray v Real Insurance Pty Ltd [2010]), an employee berating her employer about underpayment (Escape Hair Design v Sally-Anne Fitzgerald [2011]), or an employee threatening co-employees and being critical of the terms and conditions of his employment (Damien O’Keefe v William Muirs Pty Ltd [2011]) – the lessons from the cases are abundantly clear.

The simple lessons are:

1. Out of hours postings by employees on social media sites can have disciplinary consequences; and

2. The use of work assets (eg. laptops), even connected to a person’s own internet connection, in circumstances where the employer or co-employees could never see what was seen on the laptop, can have disciplinary consequences.

From the above two lessons, it is now clear in Australia that any employee who posts on any social media site any commentary which bullies, harasses, discriminates, offends or damages the brand of the business, co-employees or clients can lead to disciplinary consequences up to and including termination of employment.

However, the cases have not specifically dealt with two issues. The first is: What if the posting is true?! What if the complaint made by the employee on the social media site is demonstrably true but has the effect of embarrassing or humiliating a co employee or their employer? For example, what if an employee says the supervisor is rude, offensive and hurtful towards him and feels bullied and an investigation finds the allegations are true?

The answer seems to be less than clear. In a number of cases, the issue of truth has been handled cautiously. Unquestionably, if an organisation has strict polices and policies around the publication, identification of the business and its employees, such behaviour – truthful or not – will give rise to disciplinary consequences. That appears to be the proper response. However, in the absence of policies and procedures, an employee posting a true allegation in respect of the employer or employees of the employer is more problematic.

The second issue is do employees have a right to privacy. The question has been raised but not properly answered in the cases. Where an employee uses high personal security settings on the social media site, has a reasonable expectation that only a small group of people will read something they post and publishes it to that group – isn’t the employee entitled to say, I never expected anyone beyond the limited group to read it, and in any event, they should not have read it. It should not have been published. This is the difference between generalised gossip and the internet. In generalised gossip it is hard to identify the true author and the accuracy of what is said. In social media, the author is immediately obvious and what is said is kept for history. The cases to date suggest that it is notorious that the use of social media, if misused, will end up in others’ hands. This seems to be a somewhat flawed analysis and unfair to people who use social media.

In Canada, legal analysis of this issue is smarter and fairer. In Canada, it is suggested that if you have strict policies and procedures around the use of social media, you identify and protect the brand, the employer and the employees and you advise employees that in using any form of social media, there is a reasonable expectation that the employer will receive it, then the expectation of privacy will be eroded.

In such circumstances, the Canadian position appears a much more sensible path and one which we can all learn from. The learnings from the above cases and the Canadian position are as simple as this:

1. You must have a social media policy and procedure which identifies and protects the business brand, the employees of the business, the clients of the business or anyone else who the business may interact with.

2. The assets of a business (computers, laptops, IT infrastructure, internet enables telephones, iPod like devices, etc) are subject to the business’ scrutiny and review. Although there are some limitations on when and how access can be obtained to devices that rely on telecommunications, the clear message in the policies and procedures must be, the business reserves the right to review and restrain the use of such assets.

3. Employees must be trained and understand that any posting on any website or social media site may come into the hands of the employer and may have the effect of hurting, humiliating, intimidating, threatening or otherwise damaging relationships. In such circumstances they should be aware that such information as provided can be relied upon the business in a disciplinary process.

4. Social media is a positive medium. It should and can be used for good. Its use for business is inevitable and will eventually take over the traditional use of hard print advertising and websites. As such, there must be a deliberate and early attempt to enshrine who has authority to use it, how it is to be used, what is the nature and style of the language to be used and what is the message that is to be transmitted.

Only when these preventative steps are put in place will social media be a safe place for employees and employers alike.

Andrew Douglas is a Principal for Macpherson + Kelley Lawyers. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He appears in courts, tribunals and Commissions throughout Australia.