Canada: Employee Use of Social Media – Addressing the Risks

Copyright 2010, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Intellectual Property–Social Media Series, October 2010

There is no doubt that social media are very powerful tools in shaping an organization's image. Given the ability to share information quickly and with a wide audience, businesses are increasingly embracing social media by, for example, creating Facebook pages to advertise products and to interact directly with their customers or clients, or using Twitter to engage in public relations campaigns. However, organizations are not the only ones using social media.

By mid-2010, almost 50% of all Canadians were participating in FACEBOOK. Many of those users are also employees of businesses and other organizations. There are also numerous other social networking sites and other types of social media sites which allow employees to join, post, blog, comment, contribute and otherwise share information.

Given the ubiquitous nature of social media and the ease with which information can be created and shared, social media have provided employees with a greater ability to tarnish the reputation of employers and to expose employers to additional risks, whether the employees intend to or not.

RISKS OF EMPLOYEE SOCIAL MEDIA USE

In a 2009 survey of United States employees and companies, 74% of the employees surveyed agreed that it is easy to damage a company's reputation in social media.

However, 27% of employees said that they do not consider the ethical consequences of posting comments, photos or videos; 37% rarely or never consider what their boss would think; and 34% rarely or never consider what their customers would think. Moreover, 15% agreed that, if their employer did something with which they did not agree, they would comment about it online.

These employee attitudes can place the reputations of organizations, not to mention their confidential information, at risk. This risk is compounded by the fact that employees may believe that their personal social network pages or blogs to which they contribute are private and protected from public view. However, this is often not true.

In cases that have come before Canadian courts and tribunals where employees posted material online that could or did damage their employers' reputations, some of the employees were genuinely surprised to discover that their comments were available to the public at large. The employees often believed that their postings were only shared among a few close friends, which caused them to be more reckless in posting comments than they might otherwise have been.

ADDRESSING EMPLOYEE SOCIAL MEDIA RISKS

Given these risks, some employers may be tempted to simply block access to all social media sites so that employees cannot use them during work time. However, this is unlikely to be a workable solution for a number of reasons.

First, new sites are constantly being created and can be accessed from multiple devices, including hand-held devices, so it would be extremely difficult to block them all through all access points. Second, employees are able to access social media away from work and can post damaging material just as easily at home.

Furthermore, blocking access may have a damaging effect on employee morale as it sends a message that the employer does not trust its employees to use this increasingly important form of communication responsibly. Instead, employers should develop and implement clear policies that specifically address their expectations of employees when they use social media and set out any limitations or restrictions on that use.

While the implementation of a policy cannot provide absolute protection against the risks outlined above, it will make employees aware of the effect their activities can have on the employer and that the employer expects them to act in a responsible manner when using social media.

GUIDELINES FOR EMPLOYEE SOCIAL MEDIA POLICIES

Employers should consider the following guidelines when creating and implementing a social media policy for employees:

• Explain what social media is and what the policy covers: The policy should make clear to employees what types of activities it applies to. The definition of social media should be broad; while naming specific sites as examples can be helpful, the definition should not be limited to those sites as social media are constantly changing.
• Remind employees about the nature of social media: The policy should remind employees that any communication made through social media is or can become public, that the identity of anonymous contributors can often be revealed, and that postings can be difficult to rescind or delete.
• Include non-work usages of social media: The policy should make clear that it applies both to at-work usage, if permitted, and off-duty usage of social media. An employee's confidentiality obligations to its employer, for example, do not end as soon as the employee leaves work.
• Remind employees that what they publish reflects both on themselves and the employer: The policy should generally remind employees to exercise good judgment and prohibit the publishing of any comments that may negatively affect the employer.
• Prohibit the violation of laws: The policy should state that employees are legally responsible for their communication using social media and, as a result, should not violate any laws including those regarding human rights, defamation, copyright or other intellectual property rights, securities, financial disclosure and privacy rights, among others. Any applicable industryspecific laws should also be included in this list.
• Prohibit the violation of employer policies: The policy should reiterate that all other employer policies continue to apply to communications using social media. In particular, confidentiality policies and agreements apply to limit or prohibit the disclosure of certain information about the employer. The policy should also remind employees that seemingly innocuous or anonymized information could still breach confidentiality. In addition, codes of conduct and conflict of interest policies, among others, will continue to apply to limit improper behaviour.
• Prohibit speaking on behalf of the employer: The policy should clearly state that, unless authorized to do so, employees should not speak on behalf of the employer. Employers should also consider requesting that employees post disclaimers when they make comments in social media to the effect that their views are theirs alone and do not reflect the views of the employer.
• Advise that revisions may be requested: The policy should notify employees that, in appropriate circumstances, the employer may request revisions to, or the removal of, certain social media communications.
• Consider including specific rules regarding the use of social media in a business capacity: If the employer is considering appointing an employee or various employees to use social media on behalf of the employer, it should set out specific rules regarding this role. These rules may vary based on the employer's intended use of social media; however, any industryspecific rules, such as restrictions on disclosure or advertising, should be referenced.
• Advise that the employer will monitor employee usage of social media while at work, if applicable: If the employer will monitor employees' use of social media, which it may already do through monitoring employee Internet usage, the employer should disclose this to its employees and advise that they have no reasonable expectation of privacy with respect to their use of the Internet through employer systems.
• Advise of the consequences of a breach: The policy should provide that discipline up to and including termination of employment may result if an employee breaches this policy. A policy is only as good as its enforcement so the employer must be prepared to follow through with disciplinary action in order to ensure that its employees comply with this policy.

CONCLUSION

There is no absolute way to protect employers from the risks associated with employees' use of social media. However, an employee policy that educates employees about the nature of social media and sets out clear expectations of employee conduct when using social media can go a long way in managing these risks.

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.