In the same week that the President of the United States tweets about the frustrations of his office, and a "twitter row" erupts amongst a famous television personality and a celebrated children's author which ends up in the pages of several newspapers, it is clear that twitter, and other forms of social media, have a powerful reach, with the capacity to disrupt and damage reputations.
Employers should assume that there is a high probability that their staff are using one or more forms of social media, and putting together a practical and reasonable social media policy which staff can follow is vital. There are a number of reasons why such a policy is a good idea, the main ones being to limit the risk of reputational damage of the company, to eliminate allegations of cyber bullying and harassment between employees and to put the company in the best position to defend claims, either by dismissed employees, or against claims of vicarious liability for the actions of its staff.
There are numerous examples across the world of staff comments made on social media which ultimately damage the company or the employee. In 2013, a public relations officer of InterActiv Corp (IAC) in New York was sacked for tweeting an ill-advised comment just before she got on a plane for a business trip to South Africa. During her flight, the tweet went viral, leading to a public statement from her employer condemning her comment. She was dismissed upon landing. In the same year, a sales executive for Lacoste tweeted a photo of his salary slip, along with a comment as to what that meant he could afford in New York. Whilst he subsequently sought to argue that he was simply "expressing frustration" at the cost of living in New York, Lacoste considered that this was a breach of their confidentiality agreement and he was dismissed. In 2015 in the UK, a 27-year old barrister tweeted a LinkedIn exchange between herself and a 57-year old solicitor, in which he commented on her LinkedIn profile. Both individuals were subsequently criticised in the press – the female barrister for publicly shaming the married solicitor and the solicitor for making the comment in the first place.
Clearly, what may start out as a tweet amongst friends, can ripple out to a much wider audience.
From 20 December 2016, the Electronic System for Travel and Authorisation (ESTA) application issued by the US Customs and Border Protection now includes a (currently optional) social media question, asking for information associated with an applicant's online presence. The responses are to be used as part of the screening, vetting and law enforcement checks of ESTA applicants. Whilst the question is currently optional, it is a timely reminder that someone's online presence and behaviour can have wider implications than briefly amusing or entertaining that individual's followers.
In the UAE, the Telecommunications Regulatory Authority monitors social media platforms for inappropriate and abusive behaviour online. It also makes the point that there is a difference between public morality across regions and internet content which may be acceptable in one region is not necessarily acceptable in another.
We have previously commented [see link here] on potential criminal offences committed on social media in the UAE, which include:
- Making defamatory statements, which are statements made about someone which could lead to public contempt;
- Making comments which offends religious sanctities, or which arouses religious hatred;
- Disclosing confidential information;
- Posting photographs or videos without the consent of the subject; and
- Making comments which are contrary to public morals.
An employer could find that they are vicariously liable for the employee's conduct, either by virtue of the DIFC Employment Law (DIFC Law No. 4 of 2005, as amended) or through the Civil Code. In addition, the Anti-Discrimination Law (UAE Federal Law No. 2 of 2015) holds managers and representatives of a body corporate liable to a criminal offence where their employee commits an offence under the Anti-Discrimination Law in the name of or on behalf of the body corporate. A well drafted social media policy can therefore assist in demonstrating that the employer took steps to prevent an employee from committing conduct in breach of the law, and that such conduct was not carried out in the name of the employer.
Other examples of the benefit of a social media policy can be found elsewhere in the world. For example, in 2011, the English Employment Tribunal considered a claim brought by a dismissed employee for unfair dismissal. In that case, an Apple employee was dismissed for posting several Facebook status updates in which he made derogatory comments about the company and its products. The Judgment noted that the employee had received specific documentation from Apple which stated that employees should not do anything which might damage the company's image, and Apple also provided training to staff related to employee conduct outside work, including in relation to social media sites.
So what should a social media policy contain? Gap Inc.'s social media policy has been widely reported as a good example. It lists a number of points under the headings, "Keep in Mind", "How to be the best", and "Don't even think about it":
- The first category contains useful reminders, such as, "There's really no such thing as 'delete'", warning people about discussing issues such as politics and religion where emotions run high, and reminding staff that "It's a small world and we're a global company" which means that what an individual says can be seen by customers and employees the world over.
- The second category collates reminders about staff behaviour under basic headings such as "Be nice", "Be yourself", and "Add value".
- The final category reminds employees never to discuss financial information, or other confidential information of the company, and to never give out personal information about customers and employees.
Another succinct but sensible social media policy is Ford Motor Company's Digital Participation policy, which essentially boils down to guidance around being honest, nice, using common sense and respecting privacy. These basic tenets of social media use can be built upon by a company to reflect its own staff, culture, and the country in which the company operates.
Social media policies need not be overly complicated, but are an increasingly crucial part of an employer's set of human resources policies.