Bermuda: How Firms Can Implement A Social Media Strategy

Last Updated: 20 December 2012
Article by Appleby  

Facebook, Twitter, e-mails, blogs, YouTube, Linked-In and Skype - words that we are all familiar with as they permeate our day-to-day lives.

Although most social media started out as a recreational concept, its growth and impact is unprecedented in the commercial realm as well. Many companies now use social media as an opportunity to market themselves in the public domain, while also sharing knowledge and information almost instantaneously.

Today, I will look briefly at how social media affects the relationship and boundaries between employees and employers, and how businesses may approach implementing a social media policy.

Even if banned from using social media on the job, disciplinary matters can arise by comments made by employees outside of work. The classic example is an employee tweeting after a hard day's work "I hate my boss, he is a jerk" etc. and this comment being read across the globe in seconds.

However, the disciplinary result likely would have been the same if an employee stood outside their office with a megaphone and made the same comment about their boss, even before social media.

Where social media becomes complex is that it facilitates an individual's private and political views becoming public and permanent. In the past, a group of friends would sit in a bar and discuss the world, now they e-mail about it, or put their thoughts on Facebook. The question is, when an employee makes potentially offensive private or political comments on social media, which aren't directly or obviously linked to their employer, can the employer discipline that employee?

An interesting case that came before the UK Employment Tribunal in 2009 looked at this "grey area". One day after work, a drugs welfare worker ("G") sent an e-mail from his home computer to a friend that relayed sexist and racist views. Given that the e-mail stated at the bottom "it is your duty to pass this on", the friend happily did so.

Unfortunately for G, the e-mail chain expanded, arriving to the inbox of a prison services department, who promptly complained to G's employer, a welfare organisation. G was dismissed for gross misconduct.

G brought a claim for unfair dismissal, arguing that his e-mail had nothing to do with his employer as it was sent to a friend from his home e-mail. G had a "right" to express his views. The Tribunal thought otherwise and concluded this was a fair dismissal. The reasons were that G worked for a welfare organisation that supported vulnerable people, including women and ethnic minority communities.

It was reasonable for his employer to conclude that G's sending of such an e-mail could give an impression that they had/would accept such conduct in their company. G's views were clearly incompatible with his job. Now, if G had worked for a tire manufacturer, for example, this may have led to a different decision on the facts of the case.

Another interesting case involved YouTube. Some employees posted a video of colleagues fighting with plastic bags at work. The employees in question were dismissed on the basis that the conduct posted on YouTube brought the company's business into disrepute. The Tribunal disagreed, finding that there was no clear association with the company in the video, which had only been watched eight times. As such, the dismissals were unfair.

I am sure many of you would have different opinions as to what the correct course of action would be in the above sets of circumstances. As a general rule, in Bermuda an employee can make whatever private comments they like as long as they are not linked to their employer – unless those comments could potentially impact on the employee's ability to do their job. This is a simple and imprecise way of explaining a complex issue, as each case will always depend on the facts.

A company can reduce its risk in this area by adopting clear social media policies and treating social media misconduct in exactly the same way as any other misconduct. A clear policy for all is crucial, as inevitably different generations have varying views of

social media and apply different sets of digital etiquette to what can be said in e-mails, text messages, Facebook postings etc.

A social media policy might include the following points:

  • A declaration that the company regards comments made on a social media site as public.
  • Clear instructions that employees should ensure that any personal views they express should never be attributed to the company; should there be any doubt, employees should apply appropriate wording to disclaim the company's involvement.
  • Guidelines for using social media in the business context.
  • Confirmation that the company will monitor use of its IT systems and all social media to ensure the policy is being adhered to (including Blackberries etc).
  • A statement that bullying and harassment over social media will be treated just as severely as any other workplace bullying, even if it occurs outside of the workplace.
  • A clear warning that breach of the policy may lead to disciplinary action up to and including dismissal for gross misconduct.

It is important to create a sense of consistency. A company will need to create a workplace culture as to how it deals with social media without overly interfering with an employee's right to privacy and freedom of expression.

We all have to be careful with social media. It is an extremely useful tool and in many ways has transformed both our business and personal lives.

However, this tool must be managed in the employment context, and the best way to ensure both protection of company reputation and consistency is to implement and apply a social media policy.

Article first published in The Royal Gazette, December 2012

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.

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

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

Authors
 
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 Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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