WHEN EMPLOYEES CROSS THE LINE ON SOCIAL MEDIA

Novelist Martin Amis told Radio 4 recently that he doesn’t ‘do’ social media. Most of us however can’t avoid it. For businesses certainly, it seems the most effective way to promote a brand is through social media tools like Linked In, Facebook and Twitter.

But what happens when employees cross the line and post material that is defamatory in some way?

It’s well established that someone can be libelled online – on Twitter and elsewhere. Back in 2012 in the first ‘Twitter libel’ case in England, the New Zealand cricketer Chris Cairns was awarded £90,000 after false allegations that he was involved in match-fixing.

So whether content is damaging to a third party, for example a commercial competitor or whether an individual employee posts material that defames his or her employer, it’s clear that unfettered access to social media channels presents a risk. At Big Data Law we help businesses reduce their legal exposure through carefully planned and tailor-made advice.

‘THESE VIEWS ARE MY OWN’ – A DISCLAIMER THAT WON’T ALWAYS WORK

Disclaimers on social media accounts like ‘views are my own’ or ‘not the views of my employer’ are good practice. But they will not in most cases protect an employer from claims arising from posts made by employees in the course of their employment that are defamatory or otherwise unlawful. That’s because employers can be deemed to be vicariously liable for the actions of their employees. Admittedly, even in small and medium-sized organisations it’s difficult to keep tabs on the way individual employees behave on social media. But companies must anticipate the risk and be ready to deal with the fallout from ill-judged posts when they do occur.

THREAT FROM WITHIN? EMPLOYEE ATTACKS ON SOCIAL MEDIA

When a disgruntled employee posts defamatory material about the company the reputational and financial stakes are high. But issuing defamation proceedings takes time and there is no guarantee of success. The bar is set high for companies seeking to prove defamation. For example, it’s necessary to satisfy a number of tests, including that the complained of material will harm your reputation in the eyes of ‘right thinking members of society’ and that it is likely to seriously harm your reputation.

In addition, the employee may have a good case for posting the material – if the content is true, for example or there is a public interest-type defence.

In many cases the damage caused by defamatory material may be done before you get anywhere near court.

It’s important therefore to have measures in place to deal with the possibility that an employee will post harmful material about your business. Be ready to approach websites directly to ascertain whether it’s possible to remove the material immediately and to immediately send a formal ‘cease and desist’ letter to the employee or ex-employee.

PUTTING SOCIAL MEDIA POLICIES IN PLACE

To deal with these threats it is essential to have proper policies and procedures in place. Not only will visible policies lead to greater staff awareness of how to behave on social media, they will also demonstrate that a company has taken reasonable steps to prevent unlawful or defamatory activity. This will be crucial when attempting to defend any claim from a third party and prove useful in any employment tribunal case.

Bodies such as ACAS provide general online guides to the implementation of social media policies in the workplace. Big Data Law helps businesses put in place tailor-made measures that are appropriate to the individual business. Company-specific measures can be persuasive in demonstrating that you have taken the risk to your clients and third parties of unlawful social media material seriously. Policies will usually include provisions relating to:

• The ability of the company to monitor emails and social media accounts
• The type of behaviour that is permissible on social media
• Prohibited behaviour
• The amendment to policies to ensure compliance with new developments
• Training of key staff in relevant defamation and copyright legislation

The current level of social media engagement across all business sectors means it is impractical to monitor every posting by individual employees. But by taking the kind of proactive measures described and putting in place a crisis management plan to deal with the publication of material that’s of an unlawful or defamatory nature it is possible to mitigate against major organisational damage. To discuss how a comprehensive social media policy can protect your business you can call the team at Big Data Law on +44 (0) 7545 813 894 or contact us online.