Blake Lapthorn's In-House Lawyer and Decision Makers' forum


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Blake Lapthorn's Litigation Dispute Resolution and Employment teams joined up to present a forum on social media and confidentiality on 17 September 2013, at Blake Lapthorn's Oxford office.

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Blake Lapthorn's In-House Lawyer and Decision Makers' forum

  1. 1. Social Media and Confidentiality Nicola Diggle and Mike Wilson 17 September 2013
  2. 2. Social Media for Businesses Opportunities, Risks and Strategies Nicola Diggle Associate, Commercial Litigation and Dispute Resolution
  3. 3. The Social Media Revolution A revolution in the way business and customers communicate One way communications such as press releases are becoming “old hat” Speed of development of use of social media outstrips corporate risk management capability Online chatter memorised in disclosable form Commercial opportunities and risks with using social media for businesses
  4. 4. Risks to Commercial Organisations Damage to reputation Actions for defamation Contravene advertising regulations Vicarious liability for acts of employees e.g. discrimination and harassment Breach of confidence Infringement or compromise of IP rights Breach of Data Protection Act Employee issues and claims Jeopardise legal privilege between Company and IHL Breach market abuse rules
  5. 5. Defamation and Malicious Falsehood Statement is defamatory if it lowers the claimant in the estimation of a right thinking member of society, it identifies the claimant and is published to a third party Various defences are available Defamation Act 2013 not yet in force Malicious Falsehood involves a published false statement which was published maliciously and causes damage
  6. 6. Advertising Regulations Advertising Standards Authority Code Consumer Protection from Unfair Trading Regulations 2008 Business Protection from Misleading Marketing Regulations 2008 E-Commerce Directive Passing-Off
  7. 7. Vicarious Liability Underlying act complained of must be unlawful The act must be so closely connected with his employment that it would be fair and just to hold the employer vicariously liable.
  8. 8. Breach of Confidence (1) To protect personal confidences, trade secrets, literary confidences and state secrets Requires information which is confidential (not in public domain) The information must have been imparted in circumstances which impose an obligation of confidence Many duties of confidence also contractual, e.g., employment contracts and NDA’s Duties can also be implied Duties often survive termination of relationship
  9. 9. Breach of Confidence (2) Breach of confidence involves the unauthorised use or disclosure of confidential information Court remedies are injunctions, damages or account of profits and delivery-up or destruction Damages for breach of privacy have a different framework
  10. 10. Using Social Media in Disputes and Litigation Service of Court documents using Facebook and Twitter Disclosable documents available online? “Norwich Pharmacal “ Orders
  11. 11. Strategies Keep abreast of what your business is doing and promoting on social media to ensure compliance and to minimise risk whilst also maximising opportunities Golden rules for corporate use of social media – Engage – Participate – Influence – MONITOR To moderate or not to moderate? Workplace strategies and policies
  12. 12. Q&A: Dangerous Tweeting – What lurks beneath? Defamatory tweets Harassing tweets Malicious tweets Menacing tweets Deceptive tweets Impersonating Tweets Threatening tweets Revealing confidential information Copied tweets Use of hashtags
  13. 13. Social Media and Confidentiality Problems of misuse or abuse for employers Mike Wilson, Partner, Employment Team
  14. 14. Social Media Part of the fabric of our daily personal and working lives Blurring the lines Facebook; LinkedIn; Twitter; YouTube; Google+; Flickr; Bebo; Myspace; Blogs; Emails…….. Twitter – 65 million “tweets” a day by 200 million users LinkedIn – more than 100 million users; 2 new members signing up every second
  15. 15. Positives and pitfalls for employers Recruitment, Business Development, Networking, Marketing Protection of confidential information – who owns it? Distinguishing between work and non-work related use Protecting the business’ reputation Managing employees’ use of social media Intellectual Property, Contract and Employment Law issues
  16. 16. Who owns the information? Database created by an employee in the course of employment? Who is the owner? Must be a substantial investment in obtaining, verifying or presenting the contents of the database. Looking at LinkedIn; – did the employee “prepare” the LinkedIn database outside employment for personal reasons or “in the course of employment”? – contacts that pre-date employment or which are personal to the employee? – the fact that the database consists of personal and non- personal contacts does not necessarily mean that the employer is unable to protect it: PennWell Publishing v Ornstein (2007)
  17. 17. Confidential information Profile information such as name, educational background / qualifications – not confidential Client lists – confidential – use for non-business purposes is not permitted during employment, importance of employer protection – Hays v Ions (2008) LinkedIn – Information is publicly available (Google) – Privacy settings (contacts)
  18. 18. Managing Employees Using Social Media Should there be access to social media during working hours? Vicarious Liability? “In the course of employment”.
  19. 19. Cyber bullying Discrimination and Harassment. Medium for conduct which would otherwise be dealt with under Disciplinary Procedure. Comments posted can amount to gross misconduct; – Nature of what has been posted – All other relevant circumstances Teggert v TeleTECH UK Ltd (2011)
  20. 20. Bringing The Employer Into Disrepute Protection of reputation. Gross misconduct – even if ostensibly disseminated to personal friends / contacts only. Social media as evidence. Breach of duty of fidelity. Crisp v Apple (2011).
  21. 21. Issues on Recruitment and Termination Recruitment – Vetting candidates – Data protection considerations Restrictive Covenants – do these prevent the employee from having contact via LinkedIn? Settlement Agreements – Express provisions in settlement agreements regarding contact through LinkedIn Garden leave
  22. 22. Practical solutions Contract of Employment Policies – needed given the uncertainties in the law As a minimum a social media policy should; – set clear parameters of what is and what is not acceptable use for LinkedIn, etc – highlight business critical nature of the LinkedIn database and the fact that contacts built up during work time using work equipment belong to the employer – require employees to use the tightest privacy settings – clearly state that infringement of the policy could result in disciplinary action – make it clear that the employer will monitor usage to ensure compliance with the policy
  23. 23. Policies – some ideas for you Restricting / prohibiting employees from connecting with other recruiters and / or providing endorsements or recommendations Requiring notification to the employer each time a connection is made with a business contact Regular review meetings to look at and discuss employee’s LinkedIn database / other social media Business communities only to be set up with the express approval of the employer A comprehensive policy provides a perfect opportunity for the employer to make it clear that: – LinkedIn database is exclusively for the benefit of the employer – any contacts made via or on LinkedIn will belong to the employer – the employer retains supervisory rights to ensure the business brand is protected
  24. 24. Final thoughts Application of existing legal principles to this evolving phenomena is uncertain Employers must develop clear policies and employees must be trained in responsible usage
  25. 25. Case Study Dave works for CallCo Ltd, a call centre based in Hampshire. Dave has attended an induction day during which the employer encouraged Dave to use Social Media to enhance his contacts. Dave has a LinkedIn account from his previous employer that he thinks he will continue using as he already has a lot of personal contacts on there. Dave updates his LinkedIn account so that it clearly states he is now an employee of CallCo. On 12th September Dave has a really bad day at work, goes home and posts on Facebook “I hate CallCo, such a disorganised company, wish I didn’t have to put up with this”. Dave does not have the tightest privacy settings on his account. Steve, the HR Manager of CallCo sees the post and wants to speak to Dave about it, he is concerned that clients have also seen the post.
  26. 26. Case Study 2 Dave leaves CallCo in order to set up a competing business. Unfortunately Dave has no Restrictive Covenants in his Contract of Employment. Dave has a group set up on his LinkedIn account which was used for CallCo business. As soon as Dave leaves he uses this group as a source of email addresses for a press release announcing his new competing business and inviting everyone to attend an informal event. CallCo have asked Dave for the username, password and access details for the group but Dave has refused to disclose these details, arguing they are personal to him.
  27. 27. Contacts Mike Wilson Partner Employment Team Tel: 01865 258006 Nicola Diggle Associate Commercial Litigation and Dispute Resolution 01865 254285