An effective social media policy provides you and your employees with certainty about the expectations, rights and obligations regarding social media use. In this article we set out some information on the type of behaviour you can regulate through your policy, as well as some drafting tips on putting together your own policy.
Social media can affect you as an employer, even if your business does not use social media as a business tool. You need modern, durable and enforceable rules for social media activities by your staff, where these activities will affect your organisation.
Areas of risk
The legal risks that could affect you as an employer from your employees using social media fall into a range of areas.
The risks of social media comments to cause reputational harm to organisations are unlimited. There are numerous cases of disgruntled employees taking to social media sites such as Twitter, Instagram and Facebook to vent their frustrations about their employer or workplace.
In 2008, 13 Virgin Atlantic staff criticised the cleanliness of Virgin's fleet and its passengers on Facebook (one post claiming that the planes were full of cockroaches). The airline dismissed the employees for bringing the company into disrepute.
More recently, a Perth Airport baggage handler was terminated by his employer after he posted commentary on Facebook that appeared to support the terrorist group ISIS. However, this decision was later considered unfair by the Fair Work Commission.
An employee can also use social media platforms to sexually harass, vilify, bully, discriminate or victimise another person. This type of behaviour can contravene anti-discrimination and health and safety legislation. If the actions were taken in connection with their employment, your organisation may be vicariously liable for that conduct, unless you can show you took reasonable steps to prevent these acts from occurring, including having an effective social media policy in place.
Damage can be done even where the employee engages in conduct that may initially appear unrelated to employment or that takes place out of work hours.
One example was an employee who posted offensive and misogynistic remarks on the Facebook page of popular feminist writer and commentator Clementine Ford. Ms Ford identified the man's employer and he was subsequently sacked.
The instant and widespread publication of content on social media can also make employers vulnerable to their confidential information being misused by employees. Employees can easily – and sometimes unwittingly – disclose confidential information; for example, by discussing an upcoming deal with another employee on Facebook. A number of employers also encourage employees to communicate with clients or suppliers through social media platforms such as LinkedIn and Twitter. The risk with this approach is that it allows those employees to leave an organisation with, in effect, a confidential client list.
If an employee publishes defamatory content on a social media site that is maintained by your company, you could also be found liable as a publisher of that defamatory information. This can be the case even if:
- you were unaware of the information; or
- the employee didn't intend for the post to be defamatory.
What type of behaviour can your policy regulate?
The rapid expansion of social media use across Australia has meant that the law has been slow to catch up. Currently there is almost a complete absence of statutory protections for the privacy of employees. However, you should not see this as a green light to regulate all social media use by your employees. Courts and tribunals will intervene to block intrusions into the sphere of individuals where those intrusions are not a reasonable and proportionate response to the need to protect the business's interests.
Work-related social media use
The connection between a social media policy and employment will be clearly established if the policy concerns the use of social media as a business tool where the employer's systems are used and/or the employee is performing work at the time of use.
It is difficult to implement a total ban on private use of social media in the workplace. At a practical level, it would be very difficult to enforce given the widespread use of personal smartphones and the increasing use of social media as a marketing tool through sites such as LinkedIn.
However, employers can and should regulate excessive private social media use during work hours, as this can impact employee productivity. In O'Conner v Outdoor Creations (2011), Fair Work Australia (FWA) confirmed that excessive use of social media during work hours may constitute a valid reason for the termination of employment.
Non-work-related social media use
Generally, activities carried on outside of employment are an employee's own affair. However, activities that affect an employee's job performance, the performance of others, the employer's business or the employer's reputation are a proper focus for a social media policy.
In Rose v Telstra Corporation (1998), the Australian Industrial Relations Commission (AIRC) (now the Fair Work Commission) held that when considering an employer's role in out-of-hours conduct, the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee. Alternatively, the conduct may damage the employer's interests or be incompatible with the employee's duty as an employee. In essence, the AIRC stated that the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Before you seek to impose and enforce rules for private social media activity by employees, you will need to show that a breach of those rules will have, or has, the potential to significantly damage your business interests. Failure to establish the potential risk of harm will mean that disciplining an employee will expose you to claims such as constructive dismissal, or assist in the success of any unfair dismissal proceeding.
An example of where the regulation of such conduct has been accepted is the case of Dover-Ray v Real Insurance Pty Ltd (2010). In this case, FWA held that the employer had a valid reason to dismiss an employee who did not remove a private blog post after her employer had directed her to do so. While the blog did not name the employer, it included information that could be used to identify the employer. In the post, the employee had also referred to a recent sexual harassment investigation, stating, "I have just been through an investigation that in the end advocated corruption".
The FWA considered that the dismissal was not harsh in the circumstances, i.e. the comments were made in the public domain, were not anonymous and were an attack on the integrity of management.
Implementing an effective social media policy
It is clear that employers can broaden the link between the employment relationship and online conduct, including personal social media use, by developing and implementing appropriate policies. However, it is also clear that the policy must have a rational connection with the employer's business interests and the work undertaken by its employees.
3 principles to guide the development of your social media policy
- Representing: When posting on social media, employees should be clear at all times about who they are representing.
- Responsibility: Outline the circumstances in which an employee will be authorised to make reference to their employer on a social media site (e.g. with specific approval from management) and where they will be held responsible for any out-of-hours conduct.
- Respect: Show respect for your employer, colleagues, clients and other individuals you interact with.
Adopting a social media policy
Once you have developed a social media policy, it's important that your staff and management know about and understand the policy. Don't assume that your employees will read an attachment to an email – you need to think of other ways to get the message across. In addition to providing training on the policy, this could include practising what you preach. For example, workplace social media sites such as Yammer can encourage a collaborative social media community at work.
Considering the risks that social media can pose to your organisation, we recommend that employers seeking to implement a social media policy first seeks legal advice.
Our Workplace Relations & Safety group are experienced in drafting social media policies and are able to provide your workplace with social media training for employees. For further information, please feel free to contact any of our group at the contact details below.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.