Social media is unquestionably the new marketing frontier for businesses and the way we all like to share an opinion or have a say about what we think, eat, do and feel with our work colleagues, friends, families and people we barely know.
Hot on the heals of Twitter, Facebook and YouTube are plenty of new contenders competing with these established social media sites. Snapchat for example grew 54% in a 10 month period in 2014 and Tumblr is allegedly signing up 120,000 new users everyday.
By 2020, generation Y whose primary means of communicating is through social media will make up 50% of the workforce. It is likely that all companies will have dedicated social media teams and will be engaging in social media activity. It is expected that the majority of internet activity will originate from mobile devices and most internet traffic will flow through mobile apps.
Whilst this is an exciting new frontier for businesses and individuals alike, it is also testing established relationships and creating new areas of dispute. A particular example is the employment relationship where there is a developing conflict between an individual’s rights to freedom of expression, personal life and private life and their employer’s rights to protect its reputation, its staff and customers, its confidential information and its intellectual property rights.
(Pull quote)The line between where an individual’s obligation to their employer ends and where their personal life begins is ever blurring. Putting a post on a personal social media account, after work hours, even with security measures in place to ensure that it is not open to the public does not necessarily mean that your post is private, as 13 employees of Virgin Atlantic discovered when they were dismissed for bringing Virgin into disrepute by calling passengers “chavs” on social media. Similarly a shift manager of Wetherspoons Plc was dismissed as a result of comments she posted on her Facebook account which were rude and abusive about two of it’s customers. An employment tribunal did not accept her argument that only 40 – 50 of her close friends, rather than all of the 646 people on her Facebook friends list had seen the comments because it was satisfied that someone outside that group had clearly read the messages and complained about them to her employer.
There is no requirement on employers to disregard conduct simply because it occurs outside the workplace. If the conduct once discovered by the employer has an impact on the employee’s ability to do their job then the employer is entitled to take such conduct into account, similarly if there is an established link to the employer which is likely to damage its reputation that will be sufficient for it to take action.
There is also the risk for individuals and their employers, if discriminatory comments are posted or bullying and harassment takes place on social media. Employers are vicariously liable for the actions of their employees where they occur during the course of employment.
There is a risk for employers that employees may disclose or take their confidential information via social media. We have seen some (although limited) case law concerning LinkedIn and taking client information.
As we hone our 140 character messages for ultimate optimisation, we predict that by 2020 there will also be an increased rise in social media based litigation.
So what can be done to limit any potential liability?
Advice for employers
Companies should have a clear social media policy. The policy should articulate the following key information:
- The employer’s expectations of its employees use of social media
- The limits on its use
- How it wishes to be perceived
- What confidential information is and how it should be treated
- The level of monitoring of social media activity
- The repercussions for breaching the policy.
To ensure that the policy is adhered to, it should be made readily available in the staff handbook as a stand alone policy and made available on the intranet.
Advice for employees
Individuals should think twice before they tweet, post or blog. It’s common sense, but surprisingly uncommon, if you don’t think you would feel comfortable being cross examined on a comment you make on social media don’t do it. Assume that if it’s on social media it will not be private and can be accessed.