Social networking navigating the work place minefield


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Social networking navigating the work place minefield

  1. 1. SOCIAL NETWORKINGNAVIGATING THE WORK PLACE MINEFIELD Paper by Gavin Barnes DIRECTOR redchip lawyers Pty Ltd Prepared for LEGAL WISE SEMINAR 26 MAY 2011 PHONE: 07 3582 5055 FAX: 07 3852 2559 EMAIL: WEBSITE:
  2. 2. 1INTRODUCTIONSocial networking sites like Facebook, Myspace, Twitter and LinkedIn areplatforms on which people can socialise online, share information and connectwith each other. Users of such sites can build public or semi-public online profilesand share content with other profiles to which they choose to share a connection.Online social networking has seen rapid growth in recent years as the internetand social media applications have become more accessible. Currently Facebookhas over 500 million active users1 and Twitter has over 175 million users2. Asignificant number of individuals in Australia and around the world are membersof one or more social networks. Data from the Australian GovernmentInformation Management Office3 indicates the percentage of Australians usingsocial networking sites increased from 29 per cent in 2008 to 36 per cent in 2009.Furthermore, a global survey of lawyers4 showed a sharp rise in demand foronline networks designed exclusively for legal professionals. The survey datarevealed that more than 70 per cent of lawyers were members of an online socialnetwork - up nearly 25 per cent on the previous year - with 30 per cent growthreported among lawyers aged 46 and over.Psychological Impact of Online Social NetworkingThe Australian Psychological Society conducted a survey5 investigating patterns inonline social networking and the social and psychological impact attaching tothem. A total of 1834 Australians responded to the survey. Of the young adultsaged 18-30 who completed the survey, 97% were accessing online socialnetworking sites. While much of the media attention on online social networkinghad focused on young people’s use of those sites however, the survey found that1 Facebook Statistics, <>.2 Twitter, <>.3 The Australian Government Information Management Office, ‘Australians’ useand satisfaction with e-government services 2009’,<>.4 LexisNexis Martindale-Hubbell, ‘Networks for Counsel Study 2009’,<>.5 The Australian Psychological Society Ltd, ‘The Social and Psychological Impact ofOnline Social Networking’, APS National Psychology Week Survey 2010.
  3. 3. 281% of adults aged 31 to 50 years also reported using these sites.A large number of participants (53%) felt that online social networking allowedthem to be in contact with people more regularly, and for 79% of participants ithelped them to keep in touch with people who live far away.More than half of respondents aged 18-30 felt they would lose contact with manyof their friends if they stopped using online social networking. With the over 50age group, only 26% was concerned about losing friendships.When asked if they felt more confident socialising online than in person 54%responded in the affirmative while 8% indicated that they felt they were treatedbetter online than in face-to-face relationships.Past studies have suggested that online social networking may be particularlyhelpful for those who are shy and less sociable as it provides an easier way forthem to form connections. This survey found that people using social networkingsites are more likely to be of the type that rate themselves as having moderatelevels of shyness and sociability, suggesting that they are individuals who arelikely to be competent socially.BUSINESS RISKSMisleading ConductBusinesses that utilise social networking sites are responsible for all contentposted on those sites, including material that is posted by third parties and mustexercise control over the misleading material once it is brought to their attention. 6In ACCC v Allergy Pathway Pty Ltd , the ACCC took court action in 2009against Allergy Pathway Pty Ltd (Allergy Pathway) for making misleading anddeceptive statements about the ability of Allergy Pathway to identify, treat andcure allergies. The Federal Court found that misleading and deceptive statementshad been made and ordered Allergy Pathway and its director to give undertakingsnot to repeat the misleading and deceptive statements for a period of 3 years.6 ACCC v Allergy Pathway Pty Ltd [2011] FCA 74.
  4. 4. 3In 2010, ACCC brought another action alleging that Allergy Pathway and itsdirector breached the undertakings that they gave to the court. The allegedstatements in breach of the undertakings included testimonials and replies on thecompany’s website, Facebook page, Twitter account and on Youtube.The following testimonial was posted on Allergy Pathway’s Facebook wall:‘Allergy Pathway is amazing. It has worked wonders for me in so many ways. Ihad food allergies for as long as I can remember, avoiding seafood and shellfishand even bread! After one treatment I could eat seafood with no noticeablereaction … [name], Medical Practitioner’The court found that a company which maintained a Facebook page was liable formisleading testimonials posted on that page by users of the company’s products.In making its finding, the court emphasised that liability for the publication ofmisleading, deceptive or defamatory words is not limited to the original author ofthe words.Although Allergy Pathway was not the original author of the client testimonialsposted on its Facebook page, they had knowledge of the posting and they had thenecessary means to remove the posts but took no steps to remove thetestimonials from the social networking sites. Therefore Allergy Pathway hadpublished the testimonials and acquired responsibility for the material posted bytheir customers.Allergy Pathway and its director were each fined $7,500 for contempt of court.The court also made orders for corrective advertising to be displayed at all AllergyPathway clinics, on Allergy Pathway’s Facebook and Twitter pages and to bedistributed to all of its clients.Internet DefamationIn May 2005, each of the States and Territories of Australia agreed to enactuniform defamation laws which took effect from 1 January 20067. In Queensland,7 New South Wales (Defamation Act 2005), Victoria (Defamation Act 2005),Queensland (Defamation Act 2005), South Australia (Defamation Act 2005),Western Australia (Defamation Act 2005), Tasmania (Defamation Act 2005) andthe Australian Capital Territory (Civil Law (Wrongs) Act 2002 as amended by theCivil Law (Wrongs) Amendment Act 2006); and Northern Territory (DefamationAct 2006).
  5. 5. 4the Attorney-General and Minister for Justice, Linda Lavarch, announced inNovember 2005 that the Defamation Act 2005 (Qld) was passed in Parliament inaccordance with the proposed uniform national laws8.There is no statutory definition for defamation. At common law, the tort ofdefamation consists of the communication or publication of material thatdamages the reputation of another. The publication must be made to a personother than the person defamed."Publication" is the communication of defamatory material of and concerninganother to some person other than the defamed. At common law the tort ofdefamation is committed at the place of publication, that is, at the place wherethe communication is received.In the case of internet defamation the tort is committed in the place where thematerial is downloaded. It is only when the material is available incomprehensible form that damage to reputation is done.In Dow Jones & Company v Gutnick9 the High Court found that publication ofonline material occurs at the point when the information is downloaded by end-users, not at the place of its upload. The court held that ‘in the case of materialon the internet, it is not available in comprehensible form until downloaded ontothe computer of a person who has used a web browser to pull the material fromthe web server’10.Gaudron J stated the publication of material damaging the reputation of theperson defamed is essential and ‘merely creating and making the material isinsufficient. The material has to be accessed or communicated in a jurisdictionwhere the person defamed has a reputation’11.Who can be sued?Internet users may be sued in relation to material they write/publish themselves,or if they re-publish/distribute material written by someone else. Internet Service8 Justice and Attorney-General The Honourable Linda Lavarch, Ministerial MediaStatements, ‘Parliament Passes Landmark Defamation Laws’.9 Dow Jones & Company v Gutnick (2002) 210 CLR 575.10 Ibid at 44.11 Ibid at 151.
  6. 6. 5Providers (ISP) and Internet Content Hosts (ICH) may be sued in relation toinformation published by a user on their network or web servers.In June 2009, a Chicago apartment management company, Horizon Group,brought a libel suit12 against a former tenant over a comment made on Twitter.They claimed damages of $50,000 on the basis that the comments werepublished throughout the world.The Tweet posted was as follows: ‘Who said sleeping in a moldy apartment wasbad for you? Horizon realty thinks it’s okay.’Horizon Group alleged the Tweet was false and defamatory resulting in thereputation of the company being greatly damaged. Despite this, the proceedingswere dismissed as the judge felt the original Tweet was too vague to meet thestrict definition of libel.Alternatively, in July 2008, the High Court in the UK ordered Grant Raphael topay damages for defamation in relation to a fake Facebook page he created aboutMr Matthew Firsht13. The fake profile included a genuine photo of Mr Firsht and amixture of true and false statements about private matters such as his date ofbirth, sexual orientation and allegations regarding the ability of Mr Firsht and hiscompany to pay their debts.Anonymous posters on the internetThe recent Western Australia Supreme Court case of Moir & Datamotion vGladman is an example of a successful defamation case involving a bloggerusing a pseudonym. The case confirmed that companies may have grounds toprosecute people who make anonymous defamatory comments online.In January 2010, IT company Datamotion Asia Pacific Limited (Datamotion) andits managing director Mr Ron Moir issued proceedings in relation to defamatorymaterial published about them on the internet forum HotCopper Australia(HotCopper).12 Horizon Group Management v Amanda Bonnen, Circuit Court of Cook County,Illinois, 2009L008675.13 Applause Stores Productions Limited & Mathew Firsht v Grant Raphael [2008]EWHC 1781.
  7. 7. 6A user posted defamatory comments on HotCopper about Datamotion and MrMoir. HotCopper refused to reveal the identity of the user due to its privacy andconfidentially policy.The potential plaintiffs obtained court orders by consent against HotCopper’sowner which required disclosure of information about the anonymous posterunder a preliminary discovery process.The defendant Graeme Gladman was eventually found from the informationprovided by HotCopper. The defendant agreed to resolve the defamation actionby paying a fine of $30,000, providing apologies and giving undertakings not torepeat the defamatory publications.PrivacyThe Privacy Act 1988 (Cth)14 imposes information privacy principles (IPPs) on thefederal public sector and on private sector organisations. The IPPs set theminimum standards for the collection and handling of personal information bybusinesses and other private sector organisations.If a social networking site is based in another country such as the USA,companies might not have privacy rights under Australian law when using thesite. Also, the Privacy Act does not cover individuals acting in a personal capacity.Therefore individuals posting information on social networking sites would usuallybe exempt from the coverage of the Privacy Act15.Information on such social networking sites is publicly available and anyone canlook at it including employers. However if an organisation that is covered by thePrivacy Act collects personal information from an individual’s social networkingsite, then the organisation must comply with the National Privacy Principles thatset out how an organisation must handle personal information and the purposefor which it can be used.14 Privacy Act 1988 (Cth).15 Australian Government – Office of the Australian Information Commissioner, YourPrivacy Rights FAQs – Do I have rights under the Privacy Act when I use socialnetworking sites? <>.
  8. 8. 7The following example is taken from the Australian Government is privacywebsite16:An Australian department store collects your personal details from your Facebookpage so that they can send you information about their latest sale. If the store iscovered by the Privacy Act, they will usually need to tell you who they are, how tocontact them and they can only use your information for the purpose which theydisclose to you.In the case of Raphael v Firsht17 mentioned above, the High Court held that MrRaphael’s actions were also an invasion of privacy. However, there is no cause ofaction for invasion of privacy or tort of privacy here in Australia.Confidential information and customer data baseIn the Australian case NP Generations v Feneley18, a rental property managerkept a diary and address book containing the contact information of some of theowners of the rental properties which she managed during the course of heremployment. After her employment was terminated, she took the diary with her,began working for a competitor and made contact with eight clients of her formeremployer.The court held that where confidential information is entrusted to an employee fora limited purpose, it can only be used for that purpose and no other. It is also abreach of good faith and a breach of the equitable obligation to preserve theconfidence of an employer if an employee makes a copy of a list of customers ofthe employer for use after their employment ends19. The list of names andaddresses were confided to the property manager for a specific and limited use,namely to enable her to manage the appellant’s rental property business. Theproperty manager was ordered to deliver the address book to her formeremployer.16 Australian Government – Office of the Australian Information Commissioner, YourPrivacy Rights FAQs, ‘Are Organisations allowed to use the personal information Ipost on social networking sites?’, <>.17 Applause Stores Productions Limited & Mathew Firsht v Grant Raphael [2008]EWHC 1781.18 NP Generations Pty Ltd v Feneley (2001) 52 IPR 563.19 Ibid at 19.
  9. 9. 8Sites like Linkedln allow employees to upload their email address book intoLinkedIn and invite customers to ‘connect’. It follows that the email address bookuploaded onto LinkedIn may contain the employer’s confidential information inthe form of its customer database.When the employee leaves the company, the client information is still retained onLinkedIn. As a result, there could be loss of potential revenue, loss of confidentialclient information and the original information may lose the quality ofconfidentiality.In the UK:In the case of Hays Specialist Recruitment v Ions20, the High Court allowedpre-action disclosure in relation to a possible claim against a former employeewho had uploaded work contacts to LinkedIn.Mr Ions was employed by Hays for over 6 years as a ‘middle ranked’ recruitmentconsultant. He specialised in placing training and similar personnel for a broadrange of professional, public sector and commercial clients21.Hays claimed that Mr Ions has used confidential information concerning clientsand contacts copied while still he was still employed by Hays and breached therestrictive covenants in his contract of employment.During the course of employment and with the encouragement of his employer,Hays, Mr Ions became a member of LinkedIn and uploaded informationconcerning clients and applicants onto LinkedIn.The judge considered that Hays had reasonable grounds for a claim against MrIons arising from the fact that he uploaded client data to LinkedIn and thesubsequent use of those details in his competing business. The court said thateven if Hays had allowed the uploading of business contacts, it was likely to belimited to using the data in the performance of his duties as an employee of Hays.Mr Ions was ordered to disclose all documents, including invoices and emails,evidencing his use of the LinkedIn contacts and any business obtained fromthem.20 Hays Specialist (Holdings) Ltd and Another v Ions and Another [2008] EWHC 745.21 Ibid at 2.
  10. 10. 9In the US:In March 2010 the matter of TEKsystems v. Hammernick22 was commenced inthe United States District Court for the District of Minnesota. TEKsystems (‘TEK’),an IT staffing firm alleged that former employees violated the non-competition,non-solicitation and non-disclosure agreements entered into with TEK byunlawfully communicating with former clients of TEK via LinkedIn.The hearing and outcome will be known in August 2011.The issue involved in this case is that sensitive information could be leaked bygovernment officials. For example, in the United States, two State Departmentofficials tweeted about a trip in which they led a trade delegation of Silicon Valleyexecutives to Syria.According to a New York Times article23, their Twitter messages "raised heckles"in the U.S. House of Congress and embarrassed the State Department, whichnormally conducts its dealings with Syria--a country still classified by theAmericans as a "state sponsor for terrorism"--behind a veil of polite diplomacy.The two officials had tweeted about, amongst other things, how they challenged aSyrian communications minister to a cake-eating contest.COPYRIGHT ISSUESCopyright protects the original expression of ideas. Copyright protection inAustralia is free and automatically safeguards original works of art and literature,music, films, sound recordings, broadcasts and computer programs being copiedand from certain other uses. Copyright owners have exclusive rights to:• reproduce the work;• communicate the work to the public (for example, via fax, email, broadcasting, cable or the internet);• to perform the work in public; and• to make an adaptation.The creator of the work is usually the first owner of copyright but there areseveral exceptions. One important exception is that copyright in works created22 TEKsystems, Inc. v. Hammernick et al., No 0:10-cv-00819.23 The New York Times,’ Twitter Musings in Syria Elicit Groans in Washington’,<>.
  11. 11. 10during the course of employment are owned by the employer and not theemployee.Using social media contentSocial networking sites allow users to personalise their profile pages by postingphotographs, logos, film clips, songs and quotations. Users of social networkingsites may infringe upon another person’s copyright if they post copyright materialwithout the permission of the copyright owner.Facebook v Power Ventures24 is a lawsuit brought by Facebook alleging, a third party platform, collected user information from Facebook anddisplayed it on their website. Facebook alleged this constituted infringement ofcopyright and also asserted claims of both state and federal trademarkinfringement.Facebook allows third parties like to create applications that interactwith Facebook’s services through the Facebook Connect application. Third partyaccess is not permitted unless such access is through Facebook is a website that enables its users to aggregate data aboutthemselves that is otherwise spread across various social networking sites andmessaging services including LinkedIn, Twitter, Myspace, AOL and Yahoo instantmessaging. intended and planned to enable users to access Facebookprofile data on the site.Facebook and tried unsuccessfully to negotiate an arrangementwhereby could access Facebook’s site through the Facebook Connectapplication. Facebook alleged that continued to scrape Facebook’s sitedespite technological security measures to block such access.The court held that Facebook does not have a copyright on user content which isthe information that sought to extract. However, if made acopy of a user’s entire Facebook profile page in order to collect that user content,such action may violate Facebook’s proprietary rights.24 Facebook Inc v Power Ventures Inc., 91 U.S.P.Q.2d 1430.
  12. 12. 11Facebook’s user agreement prohibits the downloading, scraping and distributingof any content on the website, with the exception being that a user maydownload his or her own content. However, not even this exception allows a userto employ data mining, scraping or similar data gathering or extraction methodsas this would constitute unauthorised use.The utilisation of by Facebook users exceeds their access rightspursuant to the Terms of Use. When a Facebook user directs to accessFacebook, an unauthorised copy of the user’s profile page is created. The creationof that unauthorised copy through the use of’s software mayconstitute copyright infringement.Infringement – Employer vicariously liableCopyright is infringed if copyright material, or a substantial part of it, is usedwithout permission in one of the ways exclusively reserved to the copyrightowner. Employees may infringe copyright by uploading copyright material on thecompany’s social networking site or company blog without first obtaining theconsent of the copyright owner. Employers could be vicariously liable for theinfringement of another persons copyright by their employees if the employeewas acting in the course of their employment.Fair dealing defences under the Copyright Act 1968 (Cth)25 enable (in somecircumstances) the use of copyright material without the permission of thecopyright owner for one of the following purposes: criticism, review, newsreporting, parody or satire.Factors that may be taken into account in working out whether a use is ‘fair’include whether the person using the material is doing so for commercialpurposes and/or whether the work is available for sale. The mere fact that theperson using the material is not making a profit does not make it fair.Potential reputation damageOne of the risks associated with the use of social media is the loss of reputationbrought about from the disclosure of confidential business or inappropriate25 s 40, 41, 41A, 42, Copyright Act 1968 (Cth).
  13. 13. 12information. In the 2009 Deloitte survey on ethics and workplace26, 74% ofemployees said it is easy to damage a company’s reputation on social media.In February 2011, a Singapore government staff member accidentally posted apersonal tweet containing an expletive on the government agency’s officialTwitter account27. The tweet said: ‘F*** you, don’t talk to me like that’. It wastaken down within minutes but it had already gone viral with retweets by otherTwitter users. In April 2011, a tweet: ‘omg. F*** you all. Seriously’ wasaccidentally sent out on the Twitter account of Singapore’s national newspaper28to more than 46,000 followers.At a Domino’s franchise in North Carolina, two employees filmed and later posteda prank video to Youtube showing unhygienic food preparation practices29. Withina few days there were more than a million views on Youtube and a viral spreadon Twitter.PERSONAL RISKSDiscriminationThe Fair Work Act 2009 (Cth) provides that employees and employers can bringan ‘adverse action’ claim where a ‘workplace right’ has been breached or isthreatened to be breached.A person has a workplace right if the person:• has an entitlement under a workplace law or a workplace instrument such as26 2009 Deloitte LLP Ethics & Workplace Survey,<>.27 The Straits Times (Singapore), ‘What’s that *bleep* doing in a govt tweet?’,<>.28 Singapore Straits Times, ‘Vulgar tweet sent to ST followers by mistake’,<>.29 The Telegraph (UK), ‘Dominos Pizza defends reputation on Twitter after Youtubevideo shows employees abusing food’,<>.
  14. 14. 13 an award or enterprise agreement; or• is able to initiate a proceeding under a workplace law or workplace instrument; or• is able to make a complaint or inquiry in relation to their employment.Section 342 of the Fair Work Act sets out circumstances in which a person takesadverse action against another person. In the case of an employer against anemployee, adverse action includes dismissing, injuring or discriminating againstan employee.In the situation of a prospective employer, adverse action is taken when aprospective employer refuses to employ a prospective employee or discriminatesagainst a prospective employee on the terms and conditions contained in theoffer of employment.Section 351 of the Fair Work Act provides that employers are prohibited fromtaking adverse action against an employee (or prospective employee) because ofthat person’s race, colour, sex, sexual preference, age, physical or mentaldisability, marital status, family or carer’s responsibilities, pregnancy, religion,political opinion, national extraction or social origin.An employer can only do so when the action is:• not unlawful under any anti-discrimination law in force in the place where the action is taken; or• taken because of the inherent requirements of the particular position concerned; or• in accordance with doctrines, tenets, beliefs or teachings of a particular religion or creed.Employers can gain access to a variety of personal information of employeesunrelated to their employment duties such as their age, ethnicity, sexualpreferences, religious beliefs or marital status. If an employer relies on thisinformation to treat an existing or prospective employee unfavourably then theymay have breached the Fair Work Act.
  15. 15. 14Employment – unfair dismissalIn a recent unfair dismissal claim30, Fair Work Australia found that an employer,Escape Hair Design, unfairly dismissed an employee, Ms Fitzgerald, after sheposted a negative comment about her employer on Facebook.The Commissioner held that Facebook comments may impact the employer’strust and confidence in the employee, even if posted out of work hours. Thefactors that were taken into consideration include whether the employer wasnamed, who could see the comments, how long the comments were posted and ifthe comments would adversely affect the hairdressing industry or the employer’sbusiness specifically.In this case the Commissioner found that while the comments were frivolous theydid not provide a valid reason for dismissal because the postings were notdetrimental to the business and the employer had not raised the comments withthe employee at the time they were made.It may also be argued that employers or managers are being discriminatory ifthey accept some friend requests and not others. In the US it has been shownthat lawyers cannot be friends of judges on Facebook but they can be membersof their fan pages31.CyberbullyingThe Workplace Health and Safety Act 1995 (Qld)32 at section 28 states thatemployers have the obligation to ensure the health and safety of their employeesin the workplace and that those employees are not exposed to risks to theirhealth and safety.30 Miss Sally-Anne Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA735.31 The New York Times, ‘For judges on facebook, friendship has limits’,<>.32 Workplace Health and Safety Act 1995 (Qld).
  16. 16. 15The Queensland Government33 states that employers must identify and manageexposure to the risk of death, injury or illness created by workplace harassment,including bullying.Cyberbullying is the use of information and communication technologies to:support deliberate, repeated and hostile behaviour by an individual or group thatis intended to harm others.Cyberbullying techniques use modern communication technology to: (a) send derogatory or threatening messages directly to the victim or indirectly to others; and (b) forward personal and confidential communication and/or images of the victim for others to see; and (c) to publicly post denigrating messages34.A survey was conducted of a sample group of 103 randomly selected members ofthe Australian Manufacturing Worker’s Union investigating the prevalence andmethods of bullying of males at work. The results showed that 34% of therespondents were bullied face-to face, and 10.7% were cyberbullied.The results suggest that negative acts via technology are emerging alongsidethose enacted face-to-face in the workplace and may represent the new form ofbullying, though to a much more limited extent.ACCESS OF WORK – THE POSITIVE ASPECTSUniversity of Melbourne studyAccording to a study conducted by Dr Brent Coker from the University ofMelbourne35, surfing the internet for non-work purposes during office hoursincreases productivity.33 Workplace Health and Safety Queensland Department of Justice and Attorney-General, ‘Bullying and Harassment in Workplaces’, <>.34 Privitera, C., & Campbell, M.A. (2009) ‘Cyberbullying: The new face of workplacebullying?’ Cyberpsychology and Behaviour, 12(4), pp. 395-400.35 University of Melbourne Media Release, ‘Freedom to surf: workers moreproductive if allowed to use the internet forleisure’,<>.
  17. 17. 16Workplace internet leisure browsing or WILB allows workers to rest their mind bytaking a short break leading to a higher total net concentration for a days workand. as a result, increases productivity.In the study of 300 workers, 70% of the people who use the internet at workengage in WILB. Employees who do surf the Internet for non-work purposes -within a reasonable limit of less than 20% of their total time in the office - aremore productive by about 9% as against those who do not.Manpower SurveyIn 2010, Manpower Inc. (NYSE:MAN)36 surveyed over 34,000 employers in 35countries and territories intending to gauge employer attitudes toward the use ofsocial media in the workplace.Nearly six out of ten employers identified some benefits associated with socialnetworking sites including brand building (20%); the fostering of collaborationand communication (19%); new talent recruitment (15%); candidate assessment(13%); and professional development of employees (13%).HOW DO WE MANAGE THE RISKSTechnology Use PoliciesMore from the Manpower Survey63% of employers with social media policies in place indicated that these policieswere often effective in helping avoid productivity loss and 33% indicated that itwas effective in helping protect intellectual property and other proprietaryinformation.Commonwealth Bank Social Media Policy3736 Manpower Inc. (NYSE:MAN), ‘Employer Perspective on Social Networking: GlobalKey Findings’,<>.37 Charis Palmer, ‘CBA’s Facebook Face-off’,<>.
  18. 18. 17The Commonwealth Bank recently implemented a social media policy regulatingits employees’ use of social media channels including social networks,video/photo sharing sites, wikis online forums and any other website thatfacilitate the publishing of user generated content.The policy includes a clause stating that employees should notify their manager ifthey become aware of any inappropriate or disparaging content posted by othersincluding non-employees.Although this policy does not form part of the Bank’s employment contract,failure to comply with the policy may result in disciplinary action being takenagainst the employee which may ultimately result in their employment beingterminated.The Bank received much media attention and criticism following the release of itssocial media policy. The Finance Sector Union (FSU) met with the Bank to discussits concerns with the Bank’s social media policy. The FSU said the policymisrepresents employees workplace rights in that it does not acknowledge thestatutory rights of employees under the Fair Work Act 2009 and equalopportunity legislation.The Bank has since revised its policy and now employees risk dismissal only inserious cases.What should be considered when drafting a policy? 1. Review existing policies to determine if they address the use of social networking sites by employees. 2. Determine what type of use of social networking is appropriate for the employer’s business. 3. Determine the reach of the policy. 4. Determine how the employer will monitor employee’s use of social networking sites at home and at work.The employer will have difficulty relying upon the policy to sanction an employeeif it is not consistently and uniformly policed and applied.
  19. 19. 18Coca-Cola Company Online Social Media Policy38Coca-Cola provides a good example of a social media policy. It is only threepages long and offers common sense guidelines for its employees. Theseguidelines include: 1. Transparency in every social media engagement. The company does not condone manipulating the social media flow by creating fake destinations and posts designed to mislead followers and control a conversation. 2. Protection of the consumer’s privacy. The company should be conscientious regarding any Personally Identifiable Information that they collect, store or use. 3. Respect of copyrights, trademarks, rights of publicity and other third-party rights in the online social media space including with regard to user- generated content. 4. Responsibility in the use of technology. They will not associate the company with any organisations or websites that deploy the use of excessive tracking software, adware or spyware. 5. Utilization of best practices, listening to the online community and compliance with applicable regulations to ensure that these online social media principles remain current and reflect the most up-to-date and appropriate standards of behaviour.Coke also outlines “10 principles to guide how online spokespeople shouldrepresent the company” that everyone should duplicate: 1. Be Certified in the Social Media Certification Program. 2. Follow our Code of Business Conduct and all other Company policies. 3. Be mindful that you are representing the Company. 4. Fully disclose your affiliation with the Company. 5. Keep records. 6. When in doubt, do not post. 7. Give credit where credit is due and don’t violate others’ rights. 8. Be responsible to your work. 9. Remember that your local posts can have global significance. 10. Know that the Internet is permanent.38 Coca-Cola Social Media Principles, <>.
  20. 20. 19Block v Not BlockIn the 2010 Deloitte ethics and workplace survey39, 40% of executives said theircompany does not allow access to online social network sites from the workplace.According to a newspoll survey40 of more than 800 Australian workerscommissioned by Symantec, 73% of Australian workers are accessing socialnetworking sites. Of workplaces that did not officially allow workers to look atsocial networking sites during work hours the survey returned the result of 48%.While 24% of these workers access social networking sites during work hours,just under a third of these do so without approval from their employers.Many of those surveyed engaged in risky online behaviour with 20% of therespondents admitting to have posted confidential information on a socialnetworking site and 25% have accepted friend requests from someone they didnot know.Companies can use firewalls to limit access of Facebook functions to ‘read-only’.With a firewall, organisations have greater control over what applications theiremployees can access on Facebook and can apply "read-only" Facebook access tocertain staff members.There is some debate on whether employers should block employee’s access tosocial networking sites. In a 2008 survey41, it was found that when given thechoice between two similar jobs where one employer blocked access to socialnetworking sites and the other did not, 46% would choose the employer thatallowed access to these sites.According to Facebook42, there are currently more than 250 million active usersaccessing Facebook through their mobile devices. People who use Facebook ontheir mobile devices are twice as active on Facebook as compared to non-mobileusers.39 2010 Deloitte LLP Ethics & Workplace Survey,<>.40 Symantec Press Release, ‘Australian Workers Embrace Social Networking DespiteFalling Victim to Cybercriminals’, Deacons’ Social Networking Survy 2008.42 Facebook Statistics, <>.
  21. 21. 20Therefore it seems that even if employers do implement measures to blockaccess, the prevalence of smartphones and the easy access of social networkingsites on these devices would make the employer’s efforts ineffectual.Monitor online reputationThere are Websites like Google Alerts43 and Tweetbeep44 which can assistcompanies in monitoring their online reputation. By adding the company name tosuch online tools, companies can be alerted when material is posted online inrelation to their company.Monitoring employee’s useResearchers from Swinburne University of Technology in Melbourne are workingwith software company Mailguard to create a program that not only monitors theinternet use of employees but also calculates the average use for departmentsand particular occupations45.Education and awareness is the keyBusinesses should develop a clear social media policy for employees providingguidelines on safe practices on social networking sites and stating what can andcannot be posted or shared on social networking sites.The social media policy should establish clear procedures to follow when aviolation is discovered. It is important that the policy states what theconsequences of violating the policy will be.Employers should conduct ongoing social media awareness training for employeesto educate and remind them about internet safety, security and threats on socialnetworking sites.Employees should also be given a hard-copy of the company’s social media policyto sign, acknowledging that they have read and accepted the policy.43 Google Alert, Tweetbeep, The Age, ‘Bosses switch on antisocial network’,<>.
  22. 22. 21 COPYRIGHT WARNING © redchip lawyers Pty LtdOwnership. At the date of preparation of this Information Service, the copyright in thisPublication is owned by redchip lawyers Pty LtdReproducing this Publication. Other than for the purposes and subject to the conditionsprescribed under the Copyright Act 1968 (Cth) no part of this document may in any form orby any means (including, without limitation, electronic, mechanical, microcopying,photocopying, recording or otherwise) be reproduced, stored in a retrieval system ortransmitted without the prior written consent of redchip lawyers Pty LtdNo licence to use. No express or implied licence to reproduce the whole or any part of thisPublication is granted to any person or other legal entity including, without limitation, anyparty to this document or to any client of redchip lawyers Pty Ltd and no such licencecan be granted without the prior written consent of redchip lawyers Pty Ltd