Australia: Stepping carefully through the social media minefield

Last Updated: 2 July 2011

By Francine Clancy and Tim Greenall

With the dramatic rise in usage of social media and varied networks such as Facebook, Twitter and LinkedIn, organisations are seeing the plethora of potential ramifications associated with inappropriate use of social media in the workplace. This should not deter organisations from moving towards effective use of social media and benefiting from the many positive business tools now taking their place in the corporate arena. The key to successful and low-risk use of social media in the workplace is having the appropriate policies in place and ensuring all employees are adequately trained in the proper use of social media both inside and outside the workplace.

The rise in usage of social media networks has been spectacular. There are currently over 10 million Australian users of Facebook (approximately 60% of the Australian population), with other sites such as LinkedIn and Twitter becoming vastly more popular. With this amount of activity and the growing use of smart phones such as iPhones and Blackberries, it has become virtually impossible for organisations to stamp out employee use of such sites.

The associated ramifications of employee use are widespread and complex, with the legal world only beginning to come to terms with how these potential issues can be regulated and dealt with appropriately. Not a day goes by where we do not see a 'social media related' news story, speaking about the reputation and brand damage to an organisation or person due to inappropriate use of social media networks.

There are many potential risks associated with the use of social media. The 'minefield' is constantly growing and it is becoming essential for organisations to identify the possible risks and protect themselves in order to effectively utilise the many benefits connected to the proper use of social media in the workplace.

The 'Minefield'

Loss of reputation to organisations and/or individuals due to inappropriate use of social media by employees has become the leading issue faced by organisations when determining whether to embrace social media or, discourage its use. The increase of reports across the board of unfair dismissal claims, bullying and harassment, discrimination and defamation claims has now alerted organisations to the breadth of potential problems associated with this growing medium.

Social media forums for some employees has become an outlet for which they are voicing their frustrations and concerns regarding their employment. What used to be a 'venting' session with a friend over coffee has now turned into a widespread broadcast, with potentially millions of viewers.

Depending on the severity of the conduct, organisations are seeking to protect themselves against reputational damage by terminating employees who inappropriately use social media networks to post derogatory or unfavourable comments about their employer. However, the law surrounding dismissals of this nature has been varied and the Courts have determined many cases differently, purely upon the facts and circumstances surrounding each termination.

Earlier this year, Fair Work Australia ("FWA"), upon appeal, upheld a decision that an employee of a hairdressing salon, who had posted comments about her employer on Facebook, had been unfairly dismissed. The employee had posted the following comment on her Facebook page:

"Xmas bonus, along side a job warning, followed by no holiday pay! Whoooooo! The Hairdressing Industry rocks man!!!! AWSOME!"

Whilst the court cautioned against Facebook-posting outside of work hours, stating that "it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences", the Court ultimately found that the comments were not enough to be seen to damage the Employer's business.

In contrast, a case determined by FWA in late 2010 found otherwise. A disgruntled employee was dismissed for, amongst other things, posting the following comments on her MySpace blog:

"This place covers people's lives, offering to protect them when catastrophe happens and yet fails to protect the people that work for them. Chasing dollars over safety. Witch hunting. Nothing but witch hunters... This is corruption at its rawest, it is corruption at every level".

The Court found that the blog, in effect, was an attack on the integrity of the management of the organisation. Further, the criticism of corruption was of such a nature and degree that it could not be brushed aside. The refusal by the employee to remove the blog when requested to by the employer also factored in the Court's decision.

It is therefore evident, through the Court's varied decisions, that employee knowledge and understanding of appropriate social media usage is paramount. The existence of policies and regular training will give the organisation a significant buffer against unfair dismissal claims, in the event that an employer relies upon a policy to dismiss an employee for breach. Whilst this is not airtight, it gives organisations some protection if policies are properly circulated to employees and staff are given adequate training on the appropriate use of social media.

The key for organisations is to find the right balance in their own businesses, for the use of social media. Whilst some organisations may opt for a straight 'ban' approach, they may potentially miss the array of opportunities associated with this growing medium. Organisations must first decide whether social media potentially has a positive role to play in their business. If this is the case (and for most, given the speed of growth in social media, it will be), organisations will need to effectively manage the use across the organisation by properly educating employees and putting appropriate policies in place, guiding both employers and employees down the path of effective social media use.

Many organisations will already have IT policies, governing the appropriate use of staff email and internet browsing. However many will not have specific Social Media policies, or clauses within their pre-existing documents. Before embarking upon the realm of social media in the workplace, it is incumbent upon organisations to effectively manage the risks and educate staff on the potential ramifications associated with misuse. Further, many employees are not aware that their conduct, albeit out of work hours, may give rise to their termination if their conduct is serious enough to cause damage to the business. It is also essential for organisations to appropriately review employment contracts to reflect their social media policy.

It is important for organisations to consider the following factors prior to implementing an appropriate social media policy:

  • What type of conduct does the employer need to protect itself against?
  • What is the nature and extent of the control over social media usage?
  • What is considered 'appropriate' use of social media?
  • What names, logos, icons etc... cannot be published?
  • Does the organisation have valuable IP to protect?
  • Who will the policy apply to?

Clauses that are advisable to include in such policies are:

  • What activities are permitted / forbidden (including out of hours conduct).
  • What information is monitored and how.
  • What members of staff have access to staff emails and browsing logs.
  • How incidents are to be reported and handled.
  • Consequences of breach and non-compliance of the policy.

Most importantly, all policies should be easily accessible by staff. Training should be held regularly as the world of social media use is rapidly changing.

Social media provides organisations with many opportunities for business development, branding and client communication. This rapidly growing medium is definitely here to stay and will continue to provide headaches for employers if not managed effectively. Organisations should not shy away from embracing this powerful new tool. However, it is imperative that they become educated in the many pitfalls associated with the improper associated with the improper and unregulated use of social media and prepare polices, employment contracts and training programs accordingly.

For further details please contact one of the practitioners listed as authors.

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.

Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions