In December 2010, Time Magazine crowned Facebook’s Mark Zuckerberg as ‘Person of the Year’.
In November 2017, the front cover of The Economist depicted Facebook’s logo as a smoking gun, with the title ‘Social media’s threat to democracy’.
A drastic change in the mainstream position on social media, due to an ostensible threat that was not realised before.
For Australian businesses, the threats of social media are well-known.
Even organisations that don’t use social media for business and ban access to it in their workplace can be vulnerable to its potential dangers.
Anything posted about a business online – by customers and employees alike – has the potential to cause significant damage to that company. And this is not just limited to reputational and financial damage.
Here are 9 serious legal risks where your business can be liable for employee and third-party social media use, inside and outside of the workplace.
- Breach of confidentiality
Disclosure of confidential information, even if inadvertent.
- Copyright and other intellectual infringements
Breach of copyright laws when files are shared on your company’s social media platforms or IT facilities.
- Publication of deceptive or misleading information
Anything published on your social media site that can be seen as misleading or deceptive.
Employee engagement in colleague cyberbullying anywhere online.
- Sexual Harassment
Sexual harassment by employees taking place through social media channels.
Direct and indirect discrimination online, and the liability of discrimination when using social media for recruitment.
- Breach of privacy
Misuse of information in breach of the Privacy Act.
Incitement of hatred, revulsion or ridicule against persons of a particular racial or religious group, or sexual orientation or identity.
Any defamatory content posted on your social media platforms – even it is by people outside of your organisation.
Unfortunately, many workers are unaware of the damage they can cause through social media and may overstep the boundaries of what is considered prudent or acceptable.
But if employers dismiss workers for apparently unacceptable social media use without a clearly outlined social media policy in place, any worker who raises an unfair dismissal claim will often have the upper hand.
Below are two cases where the employer lost, because they didn’t properly enforce a legally compliant social media policy.
- Stutsel v Linfox Australia Pty Ltd v Fair Work Commission (2011)The Fair Work Commission (FWC) found the dismissal of an employee for posting discriminatory comments about two of his supervisors on social media was unfair, largely because of the absence of any social media policy in the workplace.
- Somogyi v LED Technologies Pty Ltd (2017)LED Technologies summarily dismissed an employee for serious misconduct after he posted a Facebook update that the employer found vulgar and offensive.The employer’s policy provided that “no work-related communication or information can be shared through any unauthorised/personal or social media. Usage of social media at work found to be improper or time wasting will result in disciplinary action.” The FWC ruled that the Facebook post was not a valid reason for dismissal for the following reasons:
- while the post was crude and immature and contained offensive, vulgar references, these were increasingly part of common vernacular;
- even though the comment had been posted while the employee was at work, it may have been during a break he was entitled to take;
- the employer could not prove that the employee had been provided with the company’s social media policy;
- there was nothing to indicate the post was directed at the business or any of its employees; and
- robust language similar to that in the post was used in the workplace at various times.