Social Media In Business – A New Legal Frontier

As something of a new frontier, social media has represented a considerable challenge to many businesses looking to safely make use of its enormous communications potential. On the one hand blogs and networking sites, such as Facebook and Twitter, are an opportunity for broadening marketing reach, achieving effective communications and building a substantial public profile; on the other, they are a dangerous portal through which confidential company information can leak and years of investment in corporate branding can be wiped away by a few careless employees. They can also open a business up to a claim for unfair dismissal or discrimination.

The risks for businesses focus mostly on the actions of employees using – or misusing – social media. In turn, risks for employees usually arise from accidental misuse of social media or an unawareness of the consequences of certain actions, such as posting derogatory comments that could amount to defamation. Many social media users are unaware of the public nature of the comments they post and that, even on a personal account, could cost them their job and cause substantial issues for their employer.

Often it is the ‘bad day’ type status or update that ends up getting everyone in hot water – for example an employee is rude about a business client who has treated them badly or writes in a defamatory way about his or her own company after a tough day in the office. There may be an accidental reveal of confidential information – either belonging to the employer company, or potentially worse, that belonging to a client of the employer company that may consequently seek redress for that breach of confidence. Then there are problems with a company’s social media accounts – badly presented or even libelous information being published online, or employees spending too much time on social media which is not part of their job description, raising disciplinary issues.

Despite the significant risks presented by social media, it has become clear in recent years that trying to stop employees using social media is as effective as attempting to prevent someone from thinking certain thoughts. Whilst it is possible to ban social media use on work computers, there is little that can be done outside of the office, short of investigating every employee to make sure their tweets and status updates are not in breach of their employment contract (although according to a Click4Compliance.com survey 20 percent of companies admit to having done this). So, what is the answer?

A social media policy is a document that can be useful for both employer and employee – an employer can use it to set out exactly what is required of its staff when it comes to social media use, as well as what constitutes behaviour that oversteps the mark, and an employee will know where they stand. For those who consider the social media policy to be an ineffective document, there is evidence to the contrary, for example the case of Stephens v Halfords plc ET/1700796/10, where an employee removed a Facebook page that contained negative information about his employer on reading the social media policy – arguably, had he seen the policy before posting the page it my never have gone up.

When considering the social media policy – and the wider questions raised by these new forms of communication – there are some specific issues for employers to bear in mind:

1. Make sure that the policy is clear and unequivocal. A vague policy that is not clear to those who read it will be ineffective and could even make it more difficult to pursue an employee who breaches it. The policy should set out what is acceptable and what is not acceptable behaviour with respect to email, internet usage, blogs, smartphones and networks such as Facebook, Twitter and Instagram. In the case of Crisp v Apple Retail (UK) Limited, Crisp was dismissed after making derogatory comments about Apple products. Thanks to detailed electronic communications guidelines and training that included exercising caution when posting online, the dismissal was held to be fair.

2. Avoid a hair trigger reaction to a perceived breach of the policy. Whitham v Club 24 Ltd t/a Ventura ET/1810462/10 demonstrated the dangers of this when Ms Whitham posted a comment on Facebook that mentioned she worked in a nursery. Her employer dismissed her for this as a breach of confidential information, but the dismissal was found to be unfair because the information was not confidential.

3. Provide an effective and confidential internal grievance policy so that employees do not feel that they have to take to social media sites to vent in the first place. It is always a mistake to respond to any online comments or postings by employees and enter into a public showdown – deal with this offline instead.

4. Avoid using a potential candidate’s social media pages in order to screen them for a job, as this may be considered discriminatory. For example, under the Equality Act 2010, if an interview is denied as a result of a perception drawn from a social media page that the candidate has a protected characteristics such as being of a certain age (even if the perception is not correct), that individual could bring a claim for discrimination. Companies that want to use these methods should keep detailed records of what was viewed and used in decisions but it is a dangerous line to walk.

5. Be sure to inform employees of any social media checking that is to take place, and consult with them on the potential restrictions and monitoring.

6. Insert a restrictive covenant into employee contracts that states that the companies’ social media accounts are company properties and that social media is important to the business.

7. Remember that freedom of expression and privacy still protect what employees post on personal accounts, depending on the circumstances. In Smith v Trafford Housing, housing trust manager Adrian Smith used his Facebook page to comment on legislation of gay marriage in churches as ‘an equality too far.’  The trust had a code of conduct that stated employees should not bring the trust into disrepute and specifically mentioned Facebook, but it was found that Smith’s Facebook page was clearly personal, the comment was posted after work hours and that he was obviously not making the comments on behalf of his employer.  As he had not endangered the trust’s reputation, disciplinary measures taken against him were found to be a breach of contract.