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Law for Business

Knowhow - guidance - precedents

28 JAN 2013

Trial by Twitter

There can be few who have not by now investigated Twitter, be it as a Tweeter, a reader of Tweets or just in terms of exposure to hash-tags and comments on Twitter on television and in newspapers and magazines. Twitter, along with Facebook, You Tube, Beebo and social media generally, has opened the doors to anyone and everyone to have their public say on anything, irrespective of knowledge. By 2006 there were over 10 million Twitter users  - and now there are over 200 million active users!

This is great for communication and sharing of views but creates a whole host of issues and potential problems for companies, employers and individuals. Many problems do not yet have firm answers but awareness of issues is key.

1. Libel - Lord McAlpine has announced that he will sue all Tweeters who commented adversely on the recent allegations of child abuse. It's too late to delete those Tweets as his advisers say they already have details of offenders. This also applies to any re-Tweets. Mrs Beddows response of "Oops" may be an understatement of the trouble in which some Tweeters may now find themselves. Lesson: Think before you Tweet - are you certain of your facts?

2. Breach of Confidentiality - All Tweeters must remember that posting Tweets containing confidential information about their employers or business associates may find them breaching confidentiality undertakings in their employment or business contracts. This could lead to disciplinary action and even dismissal in serious cases or loss of business. The defence of Whistleblowing is quite restricted. Companies should consider whether confidentiality undertakings should specifically address social media and employees should read their contracts. Lesson: Don't post confidential information on social media.

3. Breach of Policy - Some companies may have social media policies with guidance on what may/may not be posted on social media sites by employees and indeed when social media may be used by an employee. This may also be covered in a more generic IT policy. Breach of the policy may lead to disciplinary action. Companies should consider whether a social media policy is appropriate and what it should cover. Drafted properly a social media policy would (like that relied upon by Wetherspoons recently) allow an employee to be dismissed for breach. Lesson: Make sure that you know the terms of your company's social media and IT policy.

4. Harassment and Bullying - It is quite possible for social media posts or Tweets to constitute harassment or bullying by an individual; if done by a fellow employee, then the employer could be held liable for the actions of its employee. Employers should ensure that any harassment and bullying policy also addresses online comments. Lesson: You might think it is a private comment or a bit of a joke, but comments on Facebook or other social media platforms may still constitute harassment or bullying actions.

5. Disrepute - It might be funny to you at the time but posting something silly (or rude) on social media or a funny film on YouTube could bring both you and your employer into disrepute and tarnish reputations. This may lead to disciplinary action depending on the nature of the comments, the extent of the audience and the potential damage caused. Lesson: Think how your employer may view your post.

6. Recruitment checking - More recruitment agencies are now checking for online information as part of the recruitment process, so once more that silly joke, rude comment or embarrassing photo may come back to haunt you. Companies may wish to consider adding an online search to recruitment checklists but should be careful about relying solely on such information as the reason for rejecting a candidate. Lesson: Social media can survive a long time and come back to haunt you!

7. Advertising - The use of Twitter or social media for advertising your product or company can be very effective, reaching new audiences and being instant. But remember the ASA requirements to avoid misleading posts and Tweets. Mars and Snickers both had their corporate knuckles slapped for paying celebrities to Tweet positively about products without adding the #advert or #sponsorship tag. Lesson: Remember the rules on advertising.

8. Loss of Productivity - For employers this may be key and itself justify the introduction of a policy. Research has shown that lost time due to the use of social media costs UK employers £1.5 billion a year. Employers should therefore consider what is permissible usage, where can social media be used, on what equipment and what sanctions will apply, as an employer may still be held liable for an employee's actions or incur loss or damage even if social media is used outside of working hours. Lesson: If you intend to monitor employees use of the internet and social media during working hours then you need to inform them of this.

9. Human Rights - The need of employers to protect their confidential information, business reputation and productivity needs to be balanced against freedom of expression. In preparing and enforcing any social media policy an employer needs to ensure proportionality. But arguments on privacy by an individual will be difficult to sustain as online information and comments are generally considered public information. Lesson: Online is not private.

10. Generation Y factor - Although for many employers the natural reaction is to try and restrict employees use of social media or indeed internet use during working hours unless necessary for their job, working ways and methods are changing. Generation X has come to terms with the internet; Generation Y has been brought up with electronic communication being as essential as food and water. Too strict a working environment may deter younger bright creative employees from joining and bringing with them a new way of working. HP believes in embracing new communication technology and it and a number of other large companies have a very relaxed internet and social media policy. Time may tell if this works. Lesson: Be open minded!

No one size fits all. Different businesses will embrace and different individuals will use social media in different way. The key is to think about how to use it safely and effectively and how to avoid problems and undesirable outcomes on all sides. In general, if you wouldn't put the comment in a public letter, don't put in as a Tweet.

By Kate Anthony Wilkinson

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