It seems not a week goes by without another employee being disciplined or dismissed due to their inappropriate use of social media platforms such as Facebook, MySpace, Twitter or YouTube. However, most employers are still without any social media policy and appear to be adopting a ‘wait and see’ approach to social media in the workplace.

With Facebook boasting more than 500 million active users worldwide and Twitter recording 175 million registered users, many organisations are unsurprisingly keen to harness the endless commercial potential including advertising and marketing opportunities and direct access to customers and potential employees which social media offers.

Nevertheless, many organisations remain wary of the legal and reputational risks associated with such new technology which has changed the way that individuals and organisations communicate. Gone are the days when organisations could carefully control who speaks publicly about an organisation, what they can say and when they can say it. Today, social media platforms give everyone a voice which can be heard by millions of people at the click of a button, and while a damaging Facebook post or “tweet” may be posted to the web instantaneously, it can remain in the public domain forever.

Risks for employers

The main risks which social media poses for employers include:

• the need to discipline or terminate the employment of employees for comments, posts or videos made by employees either in a personal or professional capacity;
• potential vicarious liability for bullying, sexual harassment or discrimination which occurs online;
• possible reputational risk and damage to corporate branding arising out of disparaging comments, photos, videos or blogs published by an employee, or disclosure of confidential information or trade secrets; and
• managing or monitoring use of social media during work hours to maximise employee productivity.

Expensive lessons: recent cases of social media making the news

Whether employees should be disciplined for ‘private’ Facebook or Twitter comments made in their own time has been the subject of much debate. However, it is clear that employees are accountable for these comments, especially when the comments refer directly to the employer, or where the employer may be held vicariously liable for offensive comments. For example:

• in May 2010, The Age columnist Catherine Deveny was stood down after making inappropriate comments or ‘tweets’ on Twitter during the Logie awards ceremony. The Age’s Editor-in-Chief Paul Ramadge stated that “the views she had expressed recently on Twitter were not in keeping with the standards … set at The Age”;
• Olympic swimmer Stephanie Rice lost at least one sponsorship deal and may have suffered irreparable damage to her reputation following a controversial ‘tweet’ which was derogatory to homosexuals;
• the editor of a regional newspaper was stood down by Fairfax Newspapers after posting comments on his Facebook page stating that the death of Constable Bill Crews would ‘lift circulation’;
• a lawyer employed by a Queensland University was investigated after posting a YouTube video of himself burning and smoking pages from the Bible and Koran; and
• Canberra Raiders NRL star Joel Monaghan was recently forced to resign from the team after lewd pictures of him taken at a team end-of-year celebration were released into the public domain on Twitter.

Recent case law

Fair Work Australia recently considered two unfair dismissal cases following the dismissal of employees for making comments on Facebook and MySpace respectively.

In Sally-Anne Fitzgerald V Dianna Smith t/A Escape Hair Design [2010] FWA 7358 (24 September 2010), a hairdresser who wrote “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!(sic)” on her Facebook page successfully brought unfair dismissal proceedings against her former employer. After being dismissed due to ‘public display of dissatisfaction of base of employment’, the hairdresser received $2340.48 in compensation after Commissioner Bissett found that there had not been a valid reason for her termination. Commissioner Bissett also commented that “a Facebook post, while initially undertaken outside work hours, does not stop once your work recommences…It would be foolish of employees to think they may say as they wish on their Facebook page with a total immunity from any consequence”.

By contrast, in Tamicka Louise Dover- Ray v Real Insurance Pty Ltd [2010] FWA 8544 decided in November 2010, an employee unsuccessfully brought unfair dismissal proceedings against her former employer after she was dismissed following publication of a disparaging blog about the employer. The employee had been unhappy with the outcome of a sexual harassment investigation into a complaint she had made about a male colleague. She subsequently wrote a lengthy, scathing blog on her MySpace page, describing management as ‘witch hunters’, referring to the company’s values as ‘absolute lies’, alleging that her employer was corrupt and revealing confidential information about the investigation. The employer was made aware of the blog and contacted the employee to ‘show cause’ and remove the blog, which the employee refused to do. Fair Work Australia found that writing the blog (which was searchable on Google) and failing to take it down as reasonably requested, were valid reasons to terminate her employment.

Both cases illustrate how an employee’s private social media posts may be regulated by an employer and should serve as warnings to employers and employees alike.

Your Key Actions

1. Consider your organisation’s current online presence and the ways in which your employees use social media both in and outside of the workplace.
2. Assess what steps your organisation has taken to minimise potential issues arising from use of social media by customers and employees. For instance, how would your company respond if faced with a scenario similar to any of the cases above?
3. Review any social media policies currently in place and consider how far these policies extend. Ensure that any social media policy in place reinforces other policies, particularly in relation to sexual harassment, discrimination, bullying and OH&S.
4. Implement a thorough social media policy which compliments any broader social media or online marketing strategies in place.
5. Ensure that the policy is explained to employees, preferably with an acknowledgement by them that they have read and understood the terms of the policy and are familiar with it.
6. Staff should also receive training regarding the policy which should include education and awareness about social media as it is a new area which is constantly changing, and some staff may not be aware of many of the concepts.
7. Regularly update the policy so that it remains relevant and make sure employees are aware of any changes.
8. Take a proactive approach to social media by not only implementing policies and training, but by ensuring that inappropriate use of social media by employees does not go unaddressed.