Social media platforms have enabled people to instantaneously communicate with hundreds, if not thousands of people, across the globe. When coupled with the advent of smart phones, we are all now capable of communicating with anyone, anywhere and at anytime. However, this capability has not always had a positive outcome for employers and employees.
Postings on Facebook, Twitter and other social media platforms have caused all kinds of disputes. In Australian workplaces, the known causes of actions that have resulted due to inappropriate social media posts include:
In the case of Banerji v Bowles[1] the Department of Immigration and Citizenship initiated disciplinary proceedings against one of its public affairs officers after it was revealed she had been making what the Department deemed to be inappropriate comments via an anonymous Twitter account. The employee applied to the Federal Circuit Court for an injunction to prevent the Department pursuing the disciplinary proceedings against her on the basis that it was infringing her “constitutionally guaranteed freedom of expression.” In refusing to grant the injunction, the Court found that the Department was entitled to pursue the disciplinary proceedings in accordance with its Code of Conduct.
When sports reporter Scott McIntyre made in April 2015 what his employer considered to be inappropriate comments on Twitter that were labelled by then Communications Minister, Malcolm Turnbull, as despicable, SBS demanded that McIntyre take down the posts. When McIntyre refused to delete the posts, SBS terminated McIntyre’s employment. McIntyre subsequently instituted proceedings against SBS alleging that the broadcaster took adverse action against him for expressing his political opinion.
One of the primary ways for an employer to mitigate against the risks associated with employees’ use of social media is to ensure that it has an effective social media policy in place[2]:
…in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear [that] excessive use of social media at work may have consequences for employees.
Social media policies can be expressed to operate outside of work hours: [3]
I accept that there are many situations in which an employer has no right to seek to restrict or regulate an employee’s activities away from work. However, in the context of the use of social media, and a policy intended to protect the reputation and security of a business, it is difficult to see how such a policy could operate in this constrained way. Is it suggested that an employer can have a policy in place that seeks to prevent employees from damaging the business’s reputation or stopping them from releasing confidential information while at work, but leaving them free to pursue these activities outside of working hours?
Lavan Legal comment
To regulate employees’ social media use, both during and outside of work hours, an employer will need a specific social media policy upon which it can rely. Failure to have an enforceable social media policy, places an employer at risk of commercial and reputational damage from employees misuse of social media.
For further advice on this topic or assistance in drafting an effective social media policy, please do not hesitate to contact the Employment and Workplace Relations Team:
[2] Pearson v Linfox Australia Pty Ltd [2014] FWC 446 at [46]
[3] Pearson v Linfox Australia Pty Ltd [2014] FWC 446 at [47]
