Whose business is Facebook anyway?

There you are at the cricket, posting an update on Facebook about your employer and the next thing you know you are out of a job.

Can this really happen? Actually, yes it can, and according to Jeremy Szwider, a director of Bespoke Law, a fully serviced virtual law firm that is a pioneer of the next generation's legal practices, it is a real possibility given recent developments in the law...

Social media has become part of everyday life. But what many avid users of sites like Facebook, You Tube, LinkedIn and Twitter fail to realise is that the views and opinions they express on social media sites can have very different workplace consequences than their other private conversations.

Even though social media updates or 'tweets' by disgruntled employees are often posted outside of work, or after hours, these 'private' communications between 'friends' can easily catapult into the public domain. In the eyes of the law, such personal conversations may be deemed 'work related' and justify an employer's decision to terminate an employee.
A recent Fair Work Australia case (Fitzgerald v Smith) provides some useful lessons about what employees and employers should take into account when considering the consequences of social media in the workplace.

Advice for employees:

Employees complaining about their employers on social media sites are warned that expressing their views online may overstep the line between private and public comment, as such opinions can be accessed by others connected with the workplace.

To ensure your 'tweets' or updates are private, you should implement privacy settings on the social media sites you are using. If you don't, you expose yourself to workplace rules and dismissal procedures. Whilst as an employee you are entitled to express your opinion, you need to be careful about what sorts of communications might breach privacy and confidentiality laws or damage reputations.

Advice for employers:

A serious legal concern for employers is that 'vicarious liability' may be attributed to employers for discriminatory or defamatory comments made by employees online. That is, employers may actually be liable for the acts (or opinions expressed on social media) of their employees in the course of employment.

It is therefore essential for employers to create and implement social media policies for their workplaces so that everyone understands their rights and expectations when it comes to using social media.

Social media policies must clarify when and how an employee's opinion about an employer will impact on the employer. To avoid any doubt, policies should clarify that derogatory comments made about the employer in any forum, including social media sites, are unacceptable and may lead to disciplinary action.

If you are considering developing a social media policy for your employees, it is worthwhile including the following points:

• No endorsement by employer - Your policy should ensure appropriate controls so that it is clear that the opinions of an employee are distinct and separate from those of the employer.
• Confidentiality - Employees need to be reminded that public comment, in any forum and particularly on social networking sites, can be accessible by the public at large, and so confidentiality needs to be preserved.
• Use of social media for work purposes - More and more employers are delegating authority to certain staff to post business related tweets. In these instances, the employee should use a business account as distinct from his/her personal account.
• Rights at law - Make it clear in your policy that posting a derogatory comment on a social media site about the employer, a boss or a colleague may be grounds for dismissal or other legal action, such as defamation.

I strongly urge employers to consider implementing a social media policy to avoid any confusion about your expectations with regards to staff using social media sites and to avoid the possibility of unfair dismissal claims relating to social media. Employees should protect their privacy when using social media sites to make sure they don't find themselves out of a job.

Jeremy Szwider, Director of Bespoke Law

Jeremy Szwider is a director of Bespoke Law (www.bespokelaw.com). Bespoke Law is a fully serviced virtual law firm, a pioneer of the next generation's legal practices. Bespoke Law regularly tweets followers with legal updates and can be followed on Twitter@bespokelaw. Please send any comments or questions you have in relation to this article to: jeremy.szwider@bespokelaw.com