Performers have a public persona and many use social media as a tool for self-promotion. As such, should performers consider having a private social media account when posting personal information and a public-facing account for work-related posts?
Social media can be a powerful tool for performers seeking to cultivate their public image or personal brand. However, performers should carefully consider what they post on their social media accounts. Performers in the public eye are subject to greater scrutiny and their public posts could be interpreted in an unintended way. For this reason, performers wishing to avoid potential harm to themselves (reputational risk, breach of contract allegations) or to others (defamation, invasion of privacy, rights infringement), should consider maintaining separate public and private social media accounts.
In both their public and private social media accounts, performers will want to control and curate the presentation of their name, image and likeness and any intellectual property rights associated with their "persona" and brand. However, in their private accounts, performers may more freely express themselves and post material that may be considered political, controversial or sensitive in nature, potentially without inviting public scrutiny that could lead to the loss of reputation, loss of future work opportunities, or other financial loss.
Since many performers are subject to talent services contracts, endorsement deals or other forms of brand/sponsorship arrangements, they may be subject to unique restrictions on their public statements and social media usage. Accordingly, performers should familiarize themselves with any "exclusivity clauses," "confidentiality clauses," "morals clauses" and any other relevant social media guidelines or other publicity restrictions that may be included in their contracts and work arrangements. This will help ensure they stay onside of their professional obligations in pubic communications without jeopardizing their ability to express themselves more freely in their private communications.
That said, although a private account is a recommended privacy safeguard, it is important to recognize that screenshots and information from private accounts are still routinely leaked. Accordingly, performers should vigilantly assess the content of each post (whether public or private) before posting and should assume their "private" accounts are never truly private.
What considerations should performers weigh before posting something to a public-facing social media account?
Performers should review the social media guidelines of (1) the social media platforms they are using, (2) any employers of their services, and (3) third-party broadcasters or streamers that may have embedded their guidelines within the "standard terms" of a talent agreement. This will help ensure they understand all posting requirements, guidelines and restrictions. Performers should also consider any specific clauses in their contracts that may restrict what they post on social media accounts, such as:
- exclusivity: restrictions on showcasing competing products or services
- confidentiality: restrictions on posting confidential or proprietary information (e.g., don't post your on-set photos or other identifying information before the big "reveal")
- morals: prohibitions on bad behavior, which may be defined quite narrowly (e.g., don't commit criminal offences) or broadly (e.g., don't engage in discussions that could tarnish a performer's reputation or bring the producer, program or brand "into public disrepute")
- other policies: don't breach company COVID policies (e.g., photos showing you out and about during a COVID quarantine) or anti-harassment policies (e.g., by engaging in discussions that could be perceived as discriminatory, defamatory, hate speech)
Where performers advertise a product or create content to fulfil the terms of an endorsement deal, they may be required to comply with the Competition Act, which applies to "anyone who is promoting a product, service, or any business interest." Performers should take care to avoid potential "misrepresentations to the public," which include public social media posts that are "false or misleading in a material respect," and clearly disclose any material connections they have with companies whose products or services they feature.
While this guidance applies to all social media users, it is especially important for performers who may have significant pubic influence and large social media followings.
While Ontario does not have legislation, federal privacy legislation does provide certain protections, which would apply when performers are seeking employment from federally regulated bodies (such as the CBC or Bell Media). What federal privacy protections exist for employees?
Canada's federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), applies to the collection, use and disclosure of employee personal information by organizations that collect, use and disclose such information in connection with the operation of a federal work, undertaking or business, such as telecommunications and broadcasting. Accordingly, employers in these industries must comply with their obligations under PIPEDA when collecting, using or disclosing the personal information of employees, including prospective employees.
Under PIPEDA, employers must obtain an employee's (i.e., performer's) consent in relation to the collection, use and disclosure of their personal information. Specifically, personal information should be (1) limited to that which is necessary for the purposes identified by the employer, (2) used only for the purposes for which it was collected, and (3) subject to security safeguards to prevent inappropriate or unauthorized access and disclosure. Notably, however, under PIPEDA, employers may collect, use and disclose their employees' personal information without the employee's consent to establish, manage or terminate an employment relationship where they have informed the employee that their personal information will be or may be collected for such purposes.
Accordingly, performers should carefully review the privacy policy included with (or links to policies that may be included in) their employment contracts as well as any privacy-related statements or communications to properly understand how their employer may collect, use and disclose their personal information, what personal information that includes, and consider any corresponding impact of such collection, use and disclosure in relation to their online social media activity.
If a performer provides consent to a potential employer to access the performer's private social media account and the employer makes certain decisions based on that information, what are the risks and limitations regarding the use of that information?
Offers to perform a role in a particular project are frequently conditional on the satisfactory results of a background check, which can include a review of a performer's online and social media presence. Social media checks are typically limited to a review of publicly available information and an employer cannot access a performer's private social media accounts without obtaining their prior consent. While prospective employers may request to view a performer's private social media accounts, performers are under no legal obligation to provide such access.
Even where a performer provides consent to a private social media check, employers are limited in how they may use information contained in a private account. Each of the provinces in Canada has enacted human rights legislation, which prohibits discrimination in employment on the basis of specific protected grounds, which includes discrimination in hiring. Consequently, an employer's hiring decision cannot be informed by a protected ground that is irrelevant to the job. Protected grounds vary based on province. In Ontario, these grounds are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression and record of offences. While "creed" includes religious convictions, Ontario does not currently recognize political belief as a protected ground. This means employers in Ontario may consider political posts on private social media accounts to inform their hiring decisions.
Other limitations on employers' use of information may be imposed by privacy legislation, such as PIPEDA. As noted above, certain employers are generally only permitted to use or disclose private personal information for the purposes for which it was originally collected and must keep it only as long as necessary unless the performer consents or as otherwise permitted by law. Additionally, employers must have safeguards in place to protect the performer's personal information from inappropriate or unauthorized access and disclosure and consider any corresponding risks in light of their online social media activity.
Originally Published by ACTRA Toronto's Performers Magazine
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
