Written by
Changeboard Team

Published
21 Jun 2010

Social media the employment law lowdown

21 Jun 2010 • by Changeboard Team

Social media opportunities & associated risks

Social media resources have grown rapidly in recent years, in part due to the increasing availability and access to the internet both at home and from mobile devices while on the move. The term covers a vast array of different software applications, including social networking sites (Facebook, Myspace and Bebo), blogging and micro-blogging applications (Blogger, Open Diary and Twitter), multimedia sharing and networking applications (YouTube, Flickr, Skype), information sharing sites (Wikipedia), review and opinion sites (Google Answers, Yahoo! Answers) and even entertainment applications (Second Life). They all have in common the sharing of information and opinions and interaction with other users of the applications. 

The continued growth of social media represents a huge opportunity to businesses across the world, but also gives rise to many risks that appear to be particular to social media. Balancing the potential Benefits of exploiting social media with the associated risks to a business will be of increasing importance, no more so than in the ways in which its employees are permitted, and possibly encouraged, to make use of social media inside and outside of work.

Potential social media risks

Many possible Benefits from businesses exploiting social media are obvious. It gives them an opportunity to give their brand exposure far beyond and at a lower cost than traditional forms of advertising. Also, it's a nearly instantaneous method of communicating with the world, meaning it can be extremely responsive.

On the other hand, given the speed with which information and opinions can be placed on social media sites, and the fact that once there, it's almost impossible to permanently erase all records of such information; it's clear why risks might be posed to a business from its own staff and agents and also by third parties with no direct connection to the business.

Employer reputational risks

User generated content (UGC) directed to or about others may give rise to an action against an employer where one of its employees posts such content in the course of his or her employment. This might include actions for breach of confidentiality, defamation or privacy or harassment. Even unofficial company UGC can pose a serious reputational risk to a business.

An employer will also be concerned that expressions of opinion by employees about his or her own business do not reflect negatively on it, and thereby harm its reputation. It's not uncommon for disgruntled former employees to set up a site which is critical of an employer or former employer, while we frequently read about apparently humorous incidents of employees moaning about their employer or manager on their own social networking page.

A recent survey by YouGov revealed that 11% of those under 35 had posted a derogatory comment about their employer on Facebook, and that 4% of those aged 45 and over had done the same. While the possible harm that such comments could cause vary significantly, this sort of statistic underlines the potential for harm to be done to organisations by comments by employees' UGC.

Employees and third party contacts

There are further considerations for organisations in terms of the contact that employees have with each other and with customers through social media sites. Informal contact and networking may be quite welcome between individuals who have come into contact through their employment or business relationship. However, some may find such contact unwanted to the point they find it intimidating.

Should the employee formally raise a concern about such unwanted contact, the organisation will be on notice and almost invariably have to deal with the matter as a formal grievance under law. If they do nothing or endorse such contact, then there will be a risk that they would be either directly or vicariously liable should the concerned employee succeed in action, such as for unlawful harassment or discrimination under the anti-discrimination legislation.

There may be particular questions over the appropriateness of senior employees befriending junior employees where there's a significant power imbalance, and how employers might encourage employees to treat each other on social networking sites in the same way as they do at work (i.e. more formally and professionally).

Fielding candidates & data protection

Information available on social media sites, for example searching using Google, may inform an employer about prospective employees in order to narrow down candidates either before or after formal selection processes. Information on such sites is likely to inform in different ways, although care should be taken in taking all such information as being true.

A job applicant for a role at Cisco tweeted: "Cisco just offered me a job! Now I have to weigh up the utility of a fatty pay check against the daily commute to San Jose and hating the work". The tweet came to the attention of a senior Cisco employee, which doubtless didn't make for a comfortable start to the candidate's employment, if indeed they started.

The downside to making use of information available regarding prospective candidates is that much of it will be irrelevant to the recruitment decision. There may also be an action by a prospective employee who's rejected where they believe that unlawful discrimination was a factor in their rejection. Where information was viewed on a social media site which put the prospective employer on notice of the candidate being within a 'class' of individual protected by the anti-discrimination legislation, this would be disclosable in the proceedings and may give rise to inferences about the reason for their application being rejected.

There are further considerations in terms of handling and processing personal data pertaining to a candidate, which may be regulated by the Data Protection Act 1998.

Disciplinary action over user generated content

Where an employee represents a page or UGC as that of its employer, it's possible that the employer would have an action against the employee, for example passing off, breach of a registered trade mark or an action for defamation where untrue information is published about the company which would tend to lower its reputation to the viewer of that UGC. Actions may also rest against employees for negligence where UGC causes foreseeable harm to the organisation. However, it may be difficult to demonstrate the loss that has been suffered, and a heavy-handed approach in threatening or bringing claims may backfire and create adverse PR externally, as well as harming internal employee relations. 

Rather than court action, an employer may wish to pursue internal disciplinary action against an employee. The question arises whether or not it's fair to discipline or even dismiss an employee for UGC for which they are responsible. There may well be a case for an employee to answer where he or she is responsible for UGC that's significant enough to breach confidentiality owed to his/her employer or by it to a third party.

It's also probable that bringing an employer into disrepute is likely to warrant disciplinary action or even dismissal, but the further question that arises is by whose standards "disrepute" is measured.

Dismissal for UGC for which an employee is responsible is likely to be a reason related to 'conduct', which is a potentially fair reason to dismiss under the Employment Rights Act 1996 (the 'ERA'). As to whether the response to dismiss is a reasonable one and therefore fair will turn on the facts of the case, but it will assist an employer where there is a clear breach of an express employment term or policy provision that can be referred to in the disciplinary process.

It's probably less likely that UGC might impact on an employee's ability to perform their job, which would go to a 'capability' dismissal under the ERA. There are currently very few test cases on dismissals connected with UGC, so it remains to be seen what the attitude of the employment tribunals will be. However, it seems likely that this will become an area that is heavily litigated in future.

Former employees & use of contacts

As against former employees, beyond possible passing off/breach of trademark and defamation claims, there may be scope, particularly where there are express post-termination restrictions preventing certain conduct or use of confidential information by the former employee, to bring an action for damages for loss caused by a breach through publishing UGC or to seek an injunction to restrain a former employee from breaching such obligations.

A further consideration here relates to the retention and use by employees of contacts established during the course of their employment. The law would traditionally interpret such contacts as being the property of their former employer, and there may be express provision for this in their contract.

However, where business contacts have been forged or reinforced through social networking sites, such as LinkedIn or Facebook, it is questionable whether, as a matter of public policy, an employer could force an employee to surrender up these contacts and delete them upon the termination of their employment. Such a possibility would also impact on the individual's right to a private life, as well as resulting in adverse PR if an employer were to insist on surrender and deletion of such contacts.

Social media policy - what should be included?

A Manpower survey in January 2010 indicated that only 20% of companies worldwide have a social media policy. Having in place such a policy, which deals with how employees are expected to conduct themselves in their use of social media certainly inside of work but also possibly outside of it will put employees on notice as to what is and is not acceptable to the organisation. It will also better enable an employer to take appropriate and fair disciplinary action should there be concerns about inappropriate use of social networking sites. 

A social media policy may prohibit the use of certain social media applications entirely or during certain times, which would make it easier fairly to discipline an employee who breaches the usage restrictions.

A 'social media officer'

For larger organisations, it may be appropriate for an employee to act as 'social media officer', from whom employees would be expected to obtain consent before publishing any UGC. This will allow employers to vet any official social media UGC relevant to its business.

Training

Although a policy may go some way to train employees as to the correct use of social media inside and outside of work so far as it affects the employer's business, it may be that formal training is the most appropriate way of ensuring that employees are adequately informed and aware.

Monitoring?

Monitoring of employees' use of the internet and email is a controversial topic and gives rise to issues regarding privacy and freedom of expression. To the extent that monitoring is going to be carried out, provision that this may occur (and the reasons for it) should be made clear in the employee's contract and/or a policy on monitoring of communications, failing which they may be a breach of an implied term of trust and confidence as between the employer and the employee and/or of legislation regulating interception of communications or processing of data. Careful consideration should also be given to which employees in the organisation will have the ability to monitor internet use, and ideally this would be limited to a small number.

Restricting access

It's fairly common for organisations to restrict access to certain sites either entirely or for certain periods in the day from its networks. However, this will not of itself avoid unwanted use at other times or away from the office and may create adverse PR as between the organisation and employees who wish to exercise their rights to a private life and to freedom of expression.

Trust the employees?

As the alternative to restricting access and monitoring employees' use of the internet, an employer may opt to take the less invasive approach of simply trusting its employees to use social media responsibly. This will probably be more appropriate where proper training has been given and a policy is in place that can guide employees as to what constitutes appropriate use.

A balancing exercise

There are significant and growing opportunities to businesses in making use of social media. However, with the opportunities come potential risks that are important for organisations to bear in mind and address in ways appropriate to its business and culture. An employer is likely to want to engage with its customers and increase awareness of its brand and marketing messages, to protect its brand and reputation and to avoid potential liability for unlawful acts of its employees.

Some organisations may also intend for its employees to be its brand ambassadors. Due to the sometimes uneasy rub between protecting and promoting the organisation's interests and the interests of employees in terms of rights to private lives and freedom of expression, there will always be a balance to be struck. Where that balance lies may well depend on the size and nature of the company and its area of business.

About John Plant, associate, Taylor Wessing

John Plant qualified at Taylor Wessing in 2006. Within the employment and pensions group, he advises on all areas of employment law, with particular focus on employer clients.