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If your business has a Facebook page or Twitter feed, or if you have a LinkedIn profile, you know that the face of employer-employee interactions and business-customer interactions have changed, and social media is the agent of that change. 

Social media blurs the line between an individual’s public and private conversations. What was once a fleeting rant about your boss to a fellow co-worker at the water cooler is now a potentially public and indelible conversation that can remain available for weeks, months or even longer. Similarly, as an employer, you may be vicariously liable for an employee’s defamatory comments on Facebook. It’s important that you realise that your activities on popular social media may have grave consequences for you, your career or your business. This article outlines the legal risks associated with using social media in the workplace – for employers and employees.

Facebook firings: It’s not unfair dismissal
Fair Work Australia (FWA) has been required to review an increasing number of allegations of unfair dismissal based on employees’ conduct via social media, and in doing so, has increasingly upheld the employer’s right to sack an employee over the employee’s use of social media. For example, FWA recently considered a case where a computer technician was terminated from employment after posting a Facebook rant against his manager, outside of his work hours and on his own home computer. Despite high privacy settings so that his comments were visible to only 70 friends, FWA dismissed the former employee’s application for unfair dismissal.

Further, FWA has held and confirmed that:

  • excessive use of social media during work hours; and
  • an employee’s post of a disparaging or negative comment about an employer or another employee

would constitute a valid reason for terminating one’s employment.

In establishing the principle governing employees’ use of social media to disparage their employers or co-workers, Commissioner Bissett of FWA said:

A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of [an unfair dismissal] consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

Lesson for employees
As a general rule, think before you post. Unless you wouldn’t mind having the whole world know, keep your thoughts private by not posting them online. Especially keep in mind that any conduct with a sufficiently close connection to your employment, even if the conduct is outside of work or after hours, as well as negative comments about your employer or employees on a social networking site, may justify a decision to terminate your employment.

Vicarious liability: What you didn’t post can hurt you
It appears impossible today to operate a business without social media, because social media platforms enhance your marketing and advertising strategies, provide your business with a competitive edge and even enable your employees to generate online word-of-mouth advertising through their Facebook “likes” and Twitter tags. However, as an employer, you need to provide clear guidance to your employees to ensure they understand how to use social media appropriately and responsibly in the workplace, as any failure to do so could potentially leave you exposed to liability for your employees’ conduct on social media.

Under Australian laws, employers can be vicariously liable for:

  • unlawful discrimination;
  • harassment;
  • defamation; and/or
  • misleading and deceptive trade practices.

Vicarious liability can occur where your employee, for example, harasses another, if it can be shown that the act was done in connection with employment and there was failure on your part to take reasonable steps to prevent the conduct. In other words, if an employee threatens another employee on Facebook, and there were reasonable steps you could have taken to prevent it, but didn’t, you could be held liable for harassment.

Further, if your business operated a Facebook fan page, and your employees posted false testimonials about your business, services or products, you may be liable for misleading and deceptive trade practices. Australian courts would uphold this principle even if the false testimonials were posted by individuals not employed or associated with the business, but you and/or your employees had the capability to remove them and failed to do so. At present, it is not necessary for you to show any positive conduct on your part; it is enough to show that you had the power to rectify the conduct, but didn’t. Similar principles would apply in the case of defamatory statements, as posting on the Internet would constitute “publication”.

Finally, although most conduct would not result in unlawful conduct, you need to consider that your employees are presenting a public image of your business and your brand. Considering the potential impact your employees’ social media activities could have on your business, it is essential to manage the individual’s use of social media in his or her personal capacity. For example, if an employee makes a comment or posts images that a customer finds offensive, this will harm your brand’s reputation, which is often a quicker and easier process than building up your brand’s reputation again.

Lessons for employers
Manage your risk. If your business uses social media platforms, set up and implement a Social Media Policy specifically designed for your business needs. At the minimum, an effective Social Media Policy should:

  • clearly define the terms and conditions governing employee access to social media (e.g. appropriate and reasonable use that does not damage the business or brand);
  • clearly define social media conduct that will be deemed acceptable and unacceptable in the workplace, as well as outside of the workplace; and
  • clearly address the circumstances in which you would be justified to exercise your right to dismiss your employees based on their social media conduct (e.g. negative or disparaging posts, excessive use, and any other conduct that may cause damage to business interests).

A word on Google + (G+)
G+’s innovation is the ability to create “Circles” of your friends. In other words, you are able to selectively create Circles of contacts so that you can share different things with different people. For example, information you share with your close friends may not be the same information you share with your co-workers and employers, which arguably is a significant contributor to the risks associated with Facebook and other social media platforms.

It sounds fantastic, but take note of this caveat before you bare all: what you share in one Circle may not stay in that Circle. In addition to the risks outlined above, G+’s Circles feature provides users with a false sense of privacy because you think you’re only sharing with the ten other people in your Circle. In reality, you have now shared information with ten people who also have other Circles with whom they can forward your information on to – it’s the gossip grapevine 2.0.

Conclusion
In short, employees should use caution whenever using social networking sites, even when you’re not “working”. Employers should manage expectations and behaviours by setting out and communicating clear boundaries and conditions of use. Implement an effective Social Media Policy to protect you, your business and your employees.

Contact us today to ensure that you are adequately managing the legal risks associated with social media.