It is a reality of the modern day workplace that employees of a business will use social media sites on a fairly regular basis. It is easy to imagine the potential reputational damage your business may suffer should an inappropriate photo or article end up on a publicly accessible social media profile. There are also other negative repercussions any inappropriate use of social media may create. As such, how can you protect your business against the possibility that current or former employees might upload content on the internet that refers either directly or implicitly to your business or brand?
The answer lies in a well-drafted Social Media Policy to be incorporated into your business policies. The law allows you to implement a Social Media Policy as your employees are under a duty to obey lawful and reasonable directions from an employer.
Duty to obey lawful and reasonable directions
The duty to obey lawful and reasonable directions is a common law obligation implied into every contract of employment. Ideally, such a duty would also be expressly stated in a written contract of employment. An employer can rely on such a duty to give directions to employees by various means, including by the imposition of various workplace policies.
The reasonableness of an employer’s direction is ascertained by considering whether:
- the direction ‘relates to the subject matter of the employment’; and
- the direction ‘involves no illegality’ (Dixon J in R v Darling Island Stevedoring & Lighterage Co. Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601).
The lawfulness and reasonableness of an employer’s direction to an employee have been considered in cases relating to outside-work activities. As a general rule, for outside-work activities that are relevant to employment, the employer is allowed to provide directions (Michael King v Catholic Education Office Diocese of Parramatta (2014) FWCFB 219).
Advantages of a Social Media Policy
A well-drafted Social Media Policy that carefully defines ‘Social Media’ and sets out the obligations an employee must follow with respect to the use of social media during and after workplace hours may have several advantages. These advantages include:
1. Protecting your business against an unfair dismissal claim
For example, an employee may decide to rant about their arguably unpleasant boss on Facebook. However, if a Social Media Policy is in place, it may be relied upon as a justification to discipline the employee as such conduct will presumably be in breach of a well drafted policy. This means your legal risk is reduced in the event of a complaint by an employee, including a possible unfair dismissal complaint.
2. Protecting against liability
Businesses are responsible for the conduct of their employees under a legal principle called “vicarious liability”. An employee may make defamatory or threatening statements on social media sites for which the employer can be held liable. As an employer, you certainly would not want those statements to be construed as statements made or endorsed by you. An employee may also inadvertently engage in conduct that infringes on existing copyright or trademark rights of other parties. A well drafted Social Media Policy may help to prevent these issues and avoid liability that may arise as a result.
3. Preserving the company brand
An appropriate Social Media Policy will educate your employees as to which conduct amounts to unacceptable use of social media and minimize the risk they might, intentionally or inadvertently, upload photos capable of making a reference to your brand on their profile.