Ben­e­fits and pit­falls of social media for your busi­ness — do you have the right poli­cies in place?

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In brief — Increas­ing use of social media

Social media is being used increas­ing­ly, not only by indi­vid­u­als per­son­al­ly, but also by peo­ple who wish to pro­mote their busi­ness­es and them­selves in a pro­fes­sion­al or busi­ness capac­i­ty. Social media can be a pow­er­ful tool for achiev­ing these ends.

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Dif­fi­cul­ty of cor­po­rate con­trol over social media

The lev­el of con­trol that busi­ness­es have tra­di­tion­al­ly been able to exer­cise on the pub­lic state­ments that they make and on the image that they project to the pub­lic has the poten­tial of all but dis­ap­pear­ing in the ​“always on” social net­work­ing age. With the increased use of social media and the sharp decline in cor­po­rate con­trol come increased risks for busi­ness. These risks include lia­bil­i­ty for what may be post­ed or dis­closed on a social net­work­ing site and pos­si­ble rep­u­ta­tion­al damage. 

Any busi­ness that wants to reap the full ben­e­fits of social media needs to ensure that the busi­ness is prop­er­ly pro­tect­ed and that the risks are min­imised. This can be a del­i­cate bal­anc­ing act, giv­en that the type of con­trol tra­di­tion­al­ly exer­cised is the antithe­sis of user gen­er­at­ed con­tent and of com­mu­ni­ca­tions that are ​“one to many” in the social net­work­ing environment.

Employ­ers and social media

Employ­ers need to know what their rights are in con­trol­ling and mon­i­tor­ing their employ­ees’ elec­tron­ic com­mu­ni­ca­tions, includ­ing their use of social net­work­ing sites like Face­book, Twit­ter and LinkedIn. Every employ­er also needs to be aware of its rights and reme­dies if an employ­ee makes inap­pro­pri­ate use of social media, such as post­ing a defam­a­to­ry com­ment or dis­clos­ing con­fi­den­tial infor­ma­tion about the employ­er’s busi­ness or clients.

No secrets on the internet

Employ­ers are not exclud­ed from view­ing pub­licly avail­able infor­ma­tion that can be found through search engines, such as Google, or social media net­work­ing sites. This means employ­ees need to be aware that pub­lish­ing infor­ma­tion or images in the pub­lic domain may result in those employ­ees inten­tion­al­ly or unin­ten­tion­al­ly express­ing infor­ma­tion about, or to, their employ­er. Employ­ees also need to under­stand that there is a very real and impor­tant dif­fer­ence between per­son­al com­mu­ni­ca­tions and pri­vate com­mu­ni­ca­tions. Once a com­mu­ni­ca­tion is made in a social net­work­ing envi­ron­ment, there is no guar­an­tee that it will remain pri­vate. The cru­cial point that employ­ees need to grasp is that any­thing which is post­ed online can­not be recalled. Once infor­ma­tion is online, it can be impos­si­ble con­trol who views it and dis­sem­i­nates it further.

Infor­ma­tion col­lec­tion and privacy

Employ­ers need to be aware that there are cer­tain restric­tions under the Com­mon­wealth Pri­va­cy Act 1988 that pro­hib­it the unau­tho­rised col­lec­tion of per­son­al infor­ma­tion. Whilst there are exemp­tions in rela­tion to ​“employ­ee infor­ma­tion”, infor­ma­tion that an employ­ee posts in a per­son­al capac­i­ty may not fall with­in this exemption. 

Employ­ers need to take care when col­lect­ing or mak­ing use of that infor­ma­tion not to breach their oblig­a­tions to their employ­ees (or to any­one else) in rela­tion to pri­va­cy. Every busi­ness must have a pri­va­cy pol­i­cy that includes what infor­ma­tion the employ­er may col­lect and use, includ­ing infor­ma­tion in the dig­i­tal domain and infor­ma­tion that may be post­ed by employ­ees in a non work relat­ed capacity.

Mon­i­tor­ing of employ­ees’ online activity

In some cas­es, employ­ees have been caught attempt­ing to claim sick leave from an employ­er in cir­cum­stances where their com­mu­ni­ca­tions on social media net­works prove that they are not gen­uine­ly ill. (See the Octo­ber 2008 arti­cle Sick­ie fak­er bust­ed by Face­book.)

An employ­er is not nec­es­sar­i­ly pro­hib­it­ed from mon­i­tor­ing an employ­ee’s email or online activ­i­ty at work to deter­mine the employ­ee’s activ­i­ties, pro­duc­tiv­i­ty, the extent to which the employ­ee may be dis­trib­ut­ing con­fi­den­tial infor­ma­tion or any inap­pro­pri­ate con­duct towards oth­er employ­ees or mem­bers of the pub­lic. How­ev­er, in NSW any mon­i­tor­ing of the con­duct of an employ­ee, includ­ing use of a social net­work, the inter­net or email must be in accor­dance with an appro­pri­ate sur­veil­lance or mon­i­tor­ing pol­i­cy that com­plies with the NSW Work­place Sur­veil­lance Act. Every busi­ness needs to be able to demon­strate that it has such a pol­i­cy and that every employ­ee is aware of it and under­stands it. 

Edu­cat­ing staff about social media

Many busi­ness­es are now pro­vid­ing guid­ance to their staff on the appro­pri­ate uses of social media to ensure that the con­duct of employ­ees is appro­pri­ate. The aim is to min­imise any risks that the busi­ness could be exposed to as a result of some­thing that an employ­ee posts online, whether in a per­son­al capac­i­ty or oth­er­wise. All staff must under­stand that they have a respon­si­bil­i­ty to avoid expos­ing the busi­ness to any lia­bil­i­ty or to the risk of rep­u­ta­tion­al damage. 

We have recent­ly assist­ed many clients with their plans to imple­ment com­pli­ant risk man­age­ment solu­tions which pro­vide con­struc­tive guid­ance to employ­ees on appro­pri­ate ways to behave and which iden­ti­fy and man­age the risks that a busi­ness may face as a result of encour­ag­ing its staff to pro­mote them­selves and the busi­ness through social net­work­ing. Com­pa­nies which take a pru­dent approach to man­ag­ing online risk stand to reap sig­nif­i­cant rewards from social media.

Prac­ti­cal advice for employers

• Ensure your com­pa­ny has appro­pri­ate and up-to-date poli­cies which deal with pri­va­cy and with the use and mon­i­tor­ing of email, the inter­net and social media
• Ensure that on com­mence­ment of employ­ment, and reg­u­lar­ly dur­ing employ­ment, every employ­ee receives train­ing in, and acknowl­edges in writ­ing that they under­stand and agree to com­ply with, these poli­cies and they under­stand that they may be dis­missed for con­tra­ven­ing them 
• Edu­cate your staff on the appro­pri­ate use of social media; this edu­ca­tion should be manda­to­ry for cur­rent staff and form part of the induc­tion process for all new employees
• In par­tic­u­lar, make sure employ­ees under­stand that their online post­ings can be dis­sem­i­nat­ed by oth­ers and that there is a dif­fer­ence between what they post online in an indi­vid­ual capac­i­ty and what they post as employ­ees of the company

If you would like any fur­ther infor­ma­tion or advice in rela­tion to these issues, or assis­tance in imple­ment­ing appro­pri­ate social media, elec­tron­ic com­mu­ni­ca­tion or pri­va­cy poli­cies for your busi­ness, or have any oth­er queries in rela­tion to any of these mat­ters, please con­tact Swaab Attor­neys.

Authored by M Hall.