Social Media: Protecting the Employer’s Position

August 19, 2013

The recent explosion of social media has led to an increasing number of legal issues arising from malicious, defamatory and careless comments posted on websites such as Twitter, Facebook and
LinkedIn.

Recent examples include one incident in which a man was fined and given a suspended sentence for threatening Gregory Campbell of the DUP over social media. Another recent case involved an action against an anonymous user of Facebook who made defamatory comments about three employees of a Belfast company. The employees awarded £35,000 against the unidentified user.

Social media is also creating challenges for employers who can be concerned about potential reputational damage and issues arising from breach of confidentiality when faced with employees’ misuse of social media.

Employees often have both contractual and implied duties of confidentiality and fidelity to their employers. By posting comments on social media which disclose confidential information or are openly critical of their employer, employees are likely to be in breach of these duties and potentially other employment policies.

Although employers may be concerned about comments posted by employees, they should be careful to avoid a knee-jerk reaction. In the recent High Court case of Smith -v- Trafford Housing Trust, an employee posted comments on Facebook making it clear he was against gay marriage. The employer disciplined the employee due to concerns that the comments could damage its reputation. The High Court held, however, that the employee had not breached his employment contract by expressing his views and his comments had not brought the employer into disrepute.

Employers should be careful about taking disciplinary action in response to employees’ comments without considering whether there is a real risk of reputational damage. Employers should consider whether they are specifically referred to, what the potential readership of the comment is and whether they could realistically know the employee worked for that employer.

To protect their position should issues arise from the misuse of social media by employees, employers should have a comprehensive social media policy in place and this should be reviewed on a regular basis. Social media policies should set out what the organisation feels is unacceptable behaviour and draw a distinction between business and private use of social media, particularly where employees use social media in a work capacity. Although employers have limited control over employees’ use of social media outside work, they can legitimately identify that certain behaviour may result in disciplinary action if it brings the employer into disrepute or causes issues with an employer’s relationship with customers.

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.