Australia: Government 2.0: Opportunities and Challenges

Public Law Report

The Government 2.0 project aims to use social media technology to increase citizen engagement and collaboration in policy making and service provision. However, Web 2.0 tools present a unique set of challenges and potential dangers for employers, employees and citizens. In the age where our social media status defines who we are, here is a look at the flipside.

A recently-released report, "Engage: Getting on with Government 2.0", lauds the internet and "culture of open collaboration" of Web 2.0 tools such as blogs, wikis and social networking platforms as a significant opportunity to refresh the principles and values of modern democratic government and to increase transparency in, and responsiveness by, government. But citizens need to be aware of instances when use of social media and the law, or an employer's policies, may be at odds.

Social media originated as a secret haven for early adopter nerds and geeks but it has been a while since this was the case. In the last year, social media has moved swiftly into the mainstream, becoming a key indicator of business initiative and equalising the masses' ability to self promote. Somewhat serendipitously in time for this article, it was reported recently that Facebook had overtaken Google as the most popular website in the United States, a phenomenon that clearly reinforces the notion that this once niche pastime is now becoming simply a part of life.

This widespread use has seen social media permeating our schools and workplaces. As people's working lives have spilled further into their personal lives, personal social media applications such as Facebook and Twitter have spilled right back into work life through either employees surfing their networks on their own (or work) time, or businesses grappling to harness an application's marketing power. Social media also has the advantage of not being bound by traditional time zones or geographical boundaries; there are no 9 to 5 boundaries and anyone with an internet connection can at any time access public content in social media. This has meant that the audience for social media has abruptly gone global.

The law has struggled to catch up

Last month certain South Australian and Tasmanian laws created fury among the online community. Electoral law has always required newspapers, television and radio to identify commentators during the campaign process. In line with this, certain amendments made in 2009 to South Australian and Tasmanian laws required that online commentators on the electoral process submit their real name and postcode with their comments. Consistent with the electoral laws drafted in the time of newspapers, this must have seemed perfectly reasonable to those who were in charge of drafting it. In reality, the culture of internet discussion is often premised on the notion that posters choose to remain anonymous or, at the very least, very difficult to track down.

The outrage led to a result. The then South Australian Attorney-General, Michael Atkinson, was forced to announce that the amendments would be retrospectively repealed if the L abor Government continued in power and that the laws would not be enforced during the election period. Though a win for the online community, it does show how difficult it is for law makers to respond to the rapid advances in technology.

Social media's general use and acceptance has also led to the blurring of the lines between private/ public and personal/work, whether an individual is posting or blogging about the latest government initiative or sharing details of a night out with friends. Every week, the stories of employees waxing lyrical (and not in a good way) about their employers on Facebook are reported in the press. Employers are "googling" prospective employees and gathering information on them via their social media profiles. Courts are now allowing the service of court process documents via Facebook. Recently we have seen the "Facebook Six" win their case against the New South Wales Department of Corrective Services which tried to terminate their employment as a result of comments they had posted on Facebook.

Need for policies

To pro-actively address these types of situations in an employee-employer situation, employers should consider implementing specific policies to give their employees proper structure and direction in relation to social media websites. Many of the issues that arise from these types of websites including Facebook, Twitter or YouTube can be handled through a policy that indicates the company's stance on an employee's involvement in social media websites. Many organisations are now updating their internet policies to include social media. For example, Telstra has quite an extensive social media policy.

Social media policies should set out the rights and obligations of employees in relation to a range of situations such as:

  1. where employees post on an unofficial company-related social media site using a company's registered trademarks, for example, an informal Facebook group for company employees with the company logo as the profile photo
  2. where employees are authorised to post on a social media site on behalf of the company, or
  3. where employees are using social media sites on a personal level but have identified themselves as employees of the company.

A social media policy will reinforce general human resources policies and relevant employment terms such as those relating to sexual harassment and those that impose confidentiality obligations on the employee, but will also clarify how these relate to the online environment. The policy may provide employees with an indication of what constitutes reasonable use of social media sites at the office. The policy must set out the consequences of the employee's failure to comply. This is critical when the employer is trying to enforce the policy.

The legal implications of social media have provided plenty of fodder for discussion. Social media is a phenomenon that will not go away. On the contrary, initiatives such as Government 2.0 will only serve to raise awareness, and increase the use, of social media by individuals. Organisations need to ensure that they have the right policy settings to ensure that employees clearly understand the boundaries between personal social media use of any kind and use that may impact the organisation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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