Social media . . . have a good policy

Analysis

Social media . . . have a good policy

Although the scope for social media-related problems to arise at work sometimes appears formidable, the issue need not be any more difficult than managing more traditional communication methods such as use of phones and email.

WantToReadMore

Get unlimited access to all of our content.

Although the scope for social media-related problems to arise at work sometimes appears formidable, the issue need not be any more difficult than managing more traditional communication methods such as use of phones and email.

A presenter at a recent seminar conducted by law firm Carroll O’Dea, claimed that a clear policy on the use of social media should be enough to deal with any issues that may arise.

What are the potential hazards of social media?
 
Peter Doughman, a solicitor at the law firm Carroll & O’Dea, said that the user-generated content aspect of social media means that the following potential hazards can arise:
  • content is very widely accessible
  • it is unregulated
  • it is ‘permanent’ in the sense that even if content is deleted from its ‘home site’, it may have been downloaded and posted elsewhere
  • it is vulnerable to online hacking and spamming
  • it is possible to lose control of content — embarrassing things can easily ‘go viral’
  • the newness of social media means that it is still evolving — meaning, it is hard to manage, and policies and the law often lag behind technology.
The trend is continually towards having immediate access anywhere at any time. Locations can already be tracked (eg via Google Maps or Facebook check-ins) but, in future, people will be ‘wearing’ computers built into watches, glasses, etc. This means that the distinction between what is ‘work’ and ‘non-work’ is becoming more and more blurred.

For employers, the above hazards and trends may present the following problems at work:
  • Excessive use of social media for personal purposes may disrupt work and undermine productivity.
  • Online disputes between employees (such as arguments or slanging matches) can be brought into the workplace.
  • The reputation of the business can be damaged by ‘unfavourable’ content (eg employees complaining online about their managers, jobs or the organisation).
  • Onlne content may not clearly distinguish between the organisation’s views and employees’ personal views.
  • It is difficult for employers to monitor online content, even if they can do so legally.
What courts and tribunals are saying
 
There have now been several cases, mainly concerning dismissal, that have involved the use of social media at work. Its evolving nature means that to some extent firm legal principles relating to it are still being established. However, Doughman said that the following points were now clear:
  • Whether the organisation actually has a social media policy is crucial — and is usually the first question the employer will be asked.
  • The employer must be able to present evidence of a breach of the policy or hard evidence of excessive or inappropriate use of social media.
  • For dismissal to be justified, there must be serious damage to the employment relationship or to the business itself, and the employee’s conduct must be incompatible with his/her duties. Basically, the conduct must be serious enough to have repudiated the employment contract.
  • Extent of damage caused will depend on the security/privacy settings used by the employee, how accessible the content was to other parties, how many other people had access to it, how clearly the employer was identified, and how directly it related to the employee’s work or profession.
  • Any disciplinary process must follow the principles of procedural fairness.
Contents of a social media policy
 
Doughman said that a policy should cover each of the following issues:
  • state who is covered by the policy
  • define what is ‘appropriate’, ‘work-related’ and ‘personal’ use of social media
  • specify any bans (eg on using Twitter for non-work communications)
  • specify what is confidential information
  • set out principles or guidelines for online etiquette
  • specify any monitoring of social media use that will occur
  • specify the consequences for any breaches of the policy.
The policy should be backed up by training, not just on understanding the policy itself but on how to use social media properly (eg how to ensure the correct privacy settings are installed).

As an example of a policy that went too far, Doughman quoted a large bank that had to back down from trying to introduce a policy that required employees to report to management inappropriate social media conduct by their co-workers.

Further information
 
The seminar was conducted by Carroll & O’Dea, in Sydney on 21 June 2012. 
 
Post details