UK: Social Networking: An Advantage for your Business or a Liability?

Last Updated: 25 November 2010
Article by Ben Gillespie and Sara Khoja

In the past five years, social networking sites have become a phenomena of the workplace, whether for personal or professional use. The use of social networking sites such as Facebook, My Space, LinkedIn, and Twitter enables individuals to increase their online visibility by setting up personal web pages and creating online communities of friends and professional contacts.

Such sites can, if used correctly, generate interest in an employer's brand (and possibly employee's) and help a business maintain contact with clients and business associates; with individuals in some instances reconnecting with past friends and/or acquaintances. However, these sites can lead to a blurring of the boundaries between the professional and personal, resulting in a massive impact on the workplace with implications for employers and employees which need to be managed.

Recruitment

Profile pages on networking sites contain a wide range of personal information which can be accessible to all depending on an individual's privacy settings. As well as standard background information on profile pages, photographs and voluntary information such as political preferences, religion and belief, relationship status, sexuality and interests can be posted. Individuals can post information and access information about others.

Employers are increasingly searching social networking sites as part of their recruitment vetting process to the extent that a law has been passed in Germany to outlaw the practice on the basis that it represents an invasion of privacy. Research by recruitment firms and Microsoft in December 2009, has shown that individuals have failed in job applications due to information set out in their social networking profile pages. Employers need to take care that recruitment decisions based on the content of networking sites do not render them liable for unlawful discrimination; with both the DIFC Employment Law 2005 and the QFC Employment Law prohibiting a refusal to employ an individual on the grounds of his or her sex, race, nationality, disability, marital status and religion.

Employers in the DIFC and QFC are also subject to data protection laws which impose a higher regulatory burden where the data processed is sensitive personal data; exactly the sort of details personal web pages often include. Individuals have the right to know that their personal information is being processed, which it almost certainly would be if an employer scans social networking sites to vet applicants. Best practice would dictate that an applicant is informed about the vetting and verification exercise to be undertaken and given an opportunity to comment on the accuracy of the information collected.

Productivity

Further research shows that 18 to 29 year olds in the workforce spend three hours or more each week on such sites during working hours. Employers can consider blocking access to such sites (as well as to personal email sites such as gmail, hotmail and yahoo) but may meet with tough resistance, especially where employees work long hours. Instead, access could be limited to certain periods of time or disciplinary action may be taken if an employee's use is excessive and can be shown to be detrimental to his work. A company policy could also prohibit the postings of opinions regarding colleagues or the company and employment contracts could oblige employees to devote all of their working time to their duties.

Confidential Information and Intellectual Property

Use of a site such as LinkedIn may enable employees to effectively market their employer and maintain existing client relationships; often through sharing market information, bulletins, articles and news items. LinkedIn and Twitter can also provide a forum for 'crowdsourcing' i.e. asking for opinions, thoughts, input and help from online communities, groups and networks.

However, employees could reveal confidential information on such sites and in particular if they 'blog' which involves them stating personal opinions, potentially about their employer, its products or service range. Employees could also potentially infringe copyright under UAE Federal Law No 7 of 2002 (Copyright Law).

LinkedIn also poses a unique problem as it effectively works as a database of clients and contacts, many of which may have been made through employment. When an employee leaves, he can take his on line database with him. Employment Contracts and company policies should specify what information is confidential and the permitted use of such information during an employee's employment and post termination. Termination of employment without notice is permitted under the KSA Labour Code (article 80), UAE Labour Law (article 120) and the Qatari Labour Law (article 61) if an employee reveals an employer's confidential information. Criminal proceedings may also be brought under each country's penal code.

Reputation

Employees' postings and behavior in the virtual world can lead to embarrassment and damage to the employer's reputation such as to justify disciplinary action and perhaps even dismissal. Web pages, discussion forums, or blogs may be set up specifically to discuss a certain organization or product or service line. In November 2008, thirteen Virgin flight attendants were dismissed for calling the company's flyers 'chavs.' Such is the proliferation of networking sites in the virtual world that a new word has been invented for those who lose their job as a result of what they say online; they have been 'dooced.'

Employers could carry out regular searches to uncover what is being said about the business online and thereby monitor employees' activities. Disciplinary policies should clarify examples of what actions will be regarded as misconduct and what sanctions will be imposed.

Discrimination and Vicarious Liability

Under QFC and DIFC employment law, an employer may be held vicariously liable for the actions of its employees, for example bullying or harassing a colleague by comments made on facebook or twitter (there have already been some high profile prosecutions in the US). To avoid liability an employer must demonstrate that the employee acted outside the course of his employment and that it took reasonable steps to prevent the act. Again, a clear policy on social media and acceptable behavior in the virtual world would go a long way to establishing clear and transparent rules of conduct.

An employee posting a comment on a colleague could be guilty of discrimination on unlawful grounds, defamation, libel or harassment. The employee himself would be personally liable and a possible action under tort for harm suffered by the colleague commented on, could be raised in accordance with the civil codes of UAE, Qatar or KSA.

Criminal Offences

Defamation is a criminal offence in the penal codes of the UAE, Qatar and KSA. In the UAE a statement is defamatory under articles 371 to 373 of the UAE Penal Code, if it is an accusation which dishonours or discredits the person in the mind of the public generally and it has been made publicly. A fine of AED 20,000 and imprisonment of up to 2 years may be imposed.

Furthermore under the Penal Code, it is a criminal offence to publish information relating to a person's private and family life, including photos, pictures and comments without their consent. Under the Copyright Law, copyright infringement is punishable by imprisonment of two months (and a fine of AED 10,000-50,000) which double both on subsequent infringements, and the term of imprisonment may rise to 6 months if the same offence is recommitted (with the fine being a minimum of AED 50,000). 'Fair use' is permitted under the Copyright Law meaning the 'quotation of short paragraphs, derivation or reasonable analysis of work for the purposes of criticism, discussion or information' provided the source and author are mentioned. The Copyright Law permits the publication of a photo if it is of a famous person and was taken on a public occasion.

It is also a criminal offence in the UAE under Law No 15 of 1980 regarding printed matter and publishing, to publish confidential information damaging to a reputation of a person, his wealth and commercial name. The Cybercrimes law (law no 2 of 2006) prohibits publication of news or pictures which offend public manners, are contrary to Islamic principles or which violate an individual's private or family life.

Staff Policy and Disciplinary Action

An employer's openness to social networking sites will depend on the sector in which it operates and openness to such sites may make the employer more attractive to new recruits. The key consideration is to set clear standards of behavior so that an employee knows what is expected of him in terms of his performance and behavior at the outset and the consequences of getting it wrong. Employees should be aware of a common misconception that social networking sites are private and their postings will be in the public domain.

Matters are made more complicated when the misconduct takes place outside of working hours and an employer feels its reputation has been damaged. In that situation an employer must assess how far the conduct impacts on the workplace and how far its reputation has actually been damaged, for example has the employee's behavior undermined client relationships or breached confidentiality. The more senior an employee the greater will be his obligation to act in the employer's best interests and employees in the DIFC will be subject to the Law of Obligations 2005.

Employers should be mindful of employees' right to privacy protected by the constitution and also their entitlement to privacy of communication and not to have details of their personal life published without their consent. Where an employer is actively monitoring its employees, this should be explicitly set out in a company policy and express consent from employees obtained. It should be made clear to employees that the communications and IT system remains company property and personal use should be minimized.

The boundaries of what is acceptable and what is not, are still being determined by juridical authority and employers would be well advised to be transparent and clear to employees in order to set expectations and ensure appropriate behavior in the workplace (including the virtual one!).

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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