1. In-House Counsel Masterclass
Navigating the Social Network
Thursday, 7 March 2013
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2. Welcome
Emer Gilvarry
Managing Partner
Mason Hayes & Curran
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3. Philip Nolan
Partner and Head of Commercial
Mason Hayes & Curran
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4. Overview
 The “Balancing Act”:
→ Risk v reward
→ Privacy v business interests
 Key Issues
→ Employee pre-screening
→ Optimising SM technology for business
→ Use and misuse
 Implementing a social media policy
 The Horizon
→ Industry trends
→ General Data Protection Regulation
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5. Opportunity v. Risk
 Business benefits of social media:
→ Access to information
→ Building contacts
→ Identifying potential leads
→ Engaging with consumers
→ Dealing with complaints
→ Advertising 2.0
→ Information on potential hires
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6. Opportunity v. Risk
 Social Media involves “opening up” the business and
allowing free flow of knowledge. Creates risks:
→ Defamation
→ Confidentiality
→ Harassment
→ Misrepresentation of company position
 Business Challenge = Identify the benefits, measure the
risks, and create a policy that best balances the two to
create value
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7. Business Interests v Privacy
 Exercising control over personnel
 Copland v UK (2008)
→ European Court of Human Rights
→ Employees have an expectation of privacy in
communications from work equipment (Article 8 EHCR)
→ Employer violated this right by monitoring email, phone
and internet usage
 Risks to company
→ Loss of time
→ Confidential Information
→ Damaging statements
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8. Business Interests v Privacy
 How to resolve?
→ Employee Notice (key in Copland)
→ Proportionality
 Consent is helpful, but not decisive
Business Challenge = Adopt a proportionate approach to
monitoring, reflecting the risks
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9. Key Issues
 Three typical areas where advice is usually required:
→ Can we use social media to screen employees?
→ Can we use social media to build the business?
→ How do we prevent social media misuse?
 Formulating SM policy = forming a view on these issues.
 Remember to seek internal advice
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10. Issue 1: Employee Pre-Screening
 Question = Can we run background checks?
 Online presence → key indicator of suitability for the role
 Key legislation = Data Protection Acts 1988 and 2003
 Public Information: LinkedIn, Twitter etc…
→ Generally permissible (Section 2A)
→ Fair Processing Notice (Section 2D)
→ Separate issue = using the data
 Private Information: e.g. Facebook profile
→ Common in the US
→ Legislative response (at least 28 states)
→ e.g. California Social Media Privacy Act
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11. Issue 1: Employee Pre-Screening
 Can it be done in Ireland?
 Not expressly forbidden, first principles
 Obtain candidate consent (Section 2A Data Protection
Acts)
 Consent must be specific, freely given, and informed.
 Risks
 Disproportionate processing? (Section 2)
 Likely regulator hostility
 Breach of Contract
 PR / reputational risk
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12. Issue 2: Business use of Social Media
 Question = Can employees use social media to build the
business
 What social media use are we concerned about?
→ Not all social media created the same
→ LinkedIn vs. Instagram
 Different policies for different staff?
→ Marketing may require work access to Twitter
→ Sales staff could rely on LinkedIn to find leads
 Who is entitled to speak for the company on social media?
→ Marketing?
→ Executive Staff?
→ Internal pre-approvals through Legal?
 These decisions should be reflected in policy document
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13. Issue 3: “Improper” Use of social media
Question = How do we prevent employees from abusing social
media
 What can we actually monitor and control?
→ “Philip Nolan visited Facebook.com”
→ Logs do not generally disclose what an employee said
on a site.
→ Discuss this with IT
 Are we concerned about timewasting?
→ Limit personal use outside of set times (e.g. lunchtime)
 What issues should be we prohibit altogether?
→ References to business/clients
→ Critical references to fellow employees
→ Defamatory speech
→ Discussion of company operations?
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14. Issue 3: “Improper” Use of Social Media
 Exercise care to ensure that any restrictions on employees
discussing the company do not inadvertently prevent
activities that may benefit the firm, e.g. employees
promoting favourable news stories.
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15. Implementing the “Social Media Policy”
 Once position adopted on SM use; need to design rules.
 Avoid undue focus on the idea of a “social media policy;”
what matters is having effective, understandable and
proportionate rules. Could be contained in:
→ Contracts
→ An existing “acceptable use policy”
→ On an intranet
→ A dedicated social media policy
→ Information updates
 Consequences for non-compliance should be clear
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16. The Horizon: Key Trends
 Employee IT issues will become increasingly more important over
coming years.
 Sits at the crux of two distinct trends:
→ Technology Developments: Convergence
→ Legal developments: General Data Protection Regulation
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17. The Horizon: Tech Convergence
 Convergence of “personal” employee computing resources and
business IT:
→ Consumer IT devices have leapfrogged Enterprise IT
→ Google docs, Dropbox, iPhones, apps etc…
→ Developing “Bring Your Own Device” culture
→ Netflix Audit recently found that employees were using 496
separate smart phone apps for work
 Key risk = security of company data
 Well meaning employees, but a risk to the business
 Engage with IT department to develop rules
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18. The Horizon: General Data Protection
Regulation
 Draft Regulation, currently before Parliament and Council
 Greatly strengthens the right to privacy
 Numerous competing drafts
 Key points:
→ High fines, 2% global turnover
→ Possible loss of “legitimate interests” ground for processing
→ Expressly suggests that “consent” will not justify processing in
the employment context
 Will impact on all aspects of operations, but is likely to make
employee monitoring more challenging.
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19. Summary
 Social Media = An issue to be tackled, not something to avoided
 Find the risk v. reward trade-off that best suits your business
 Design a bespoke policy
 Communicate it effectively
 Keep an eye on changing trends
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20. Jeanne Kelly
Partner
Mason Hayes & Curran
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21. Overview
• Ownership and use of content on SM
• What steps should you take when harmful content is flagged?
• What defences are available?

22. Content: Ownership and Use
• Third party? Interns? Safeguards needed
• Ownership of output
• Responsibility for content
• Transitioning to new provider?
• Responsiveness for breach/harmful content?
• SM Policies and SM own terms of use
• Need to be familiar with both law and internal systems of
the SM page.
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23. Brand Protection issues
• What can you say about your customer’s experience?
• What can you say about a competitor’s product?
• L’Oreal v Bellure
• Use of UGC?

24. Who gets notified?
• In-house counsel expected to be a “helicopter parent”?
• Managing expectations
• Have the numbers stored/reporting path agreed
• External/internal PR/Lawyers/Tech experts/Insurers

25. Content Case study
• Content that defames or infringes others rights is flagged to you
• Should it be taken down at all?
• Taking down
• If fails, legal steps
• Unmasking the culprit (Norwich Pharmacal)

26. Defence?
• E-Commerce Regulations Art 18 Defences: Hosting
- No knowledge
• Acting expeditiously: different views of urgency?
• Similar concepts in Copyright Act 2000
• s27 Defamation Act 2009

27. Risks inherent in monitoring? - Hilton case UK 2010
“The fact that Mr Hilton on a few occasions removed blog posts
on grounds of bad language, political provocation or
offensiveness falling short of defamation … makes it at least
arguable that the service provided …. consisted of more than
mere storage.”

28. Takeaways
• Take ownership of the interaction
• Be proactive for planning but reactive for incidents
• Understand the forum
• Know the SM terms and processes, or outsource
• SM policies
• Staff training

29. Elizabeth Ryan
Partner
Mason Hayes & Curran
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30. “Will the Highways on the Internet
become more… few?”
- George W. Bush
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31. Overview
• Social media to screen candidates
• Ownership of social media contacts
• Disclosure of confidential information
• Cyber slacking
• Social media – harassment and bullying
• Reputational damage
• Discipline and dismissal
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32. Use of Social Media to Screen Candidates
• Discrimination - nine grounds – candidates protected by
Employment Equality Acts – age discrimination
• Gaskell v University of Kentucky – University believed that Mr.
Gaskell’s “creationist views” conflicted with a job application
• Flexman v BG Group- upheld constructive dismissal claim

33. Ownership of Social Media Contacts
• 89.5% of employees use LinkedIn
• Hayes Specialist Recruitment v Ions - Court ordered
disclosure of contacts
• Penwell Publishing v Ornstein and Others – Court found
contacts to be property of employer
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34. Disclosure of Confidential Information
• NAMA – court injunctions - employee (and wife) to return
confidential information to NAMA
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35. Cyber Slacking
• O’Leary v Eagle Star – no negative impact on work targets
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36. Social Media - Harassment/Sexual
Harassment/Bullying
• Employment Equality Acts 1998 - 2011
• Safety, Health and Welfare at Work Act, 2005
• Employer vicariously liable for acts of employees
• Morse v Future Reality - Complaint of sexual harassment
upheld
• Chevron Oil - €2.2 settlement of sexual harassment charges
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37. Reputational Damage
• Vodafone – video brought to attention of Vodafone by
Twitter user
• Dominos Pizza – Fired and faced with felony charges
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38. Discipline and Dismissal for use of Social
Media
• Emma Kiernan v A-Wear – dismissal unfair
• O’Mahony v PGS Insurance - breach of Trust - dismissal fair
• Preece v JB Weatherspoon - Dismissal fair - freedom of
expression fettered
• Crisp v Apple - Dismissal fair - Image
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39. Take Away - Best Practice Guidelines
• Put a policy in place
• Implement a proportional monitoring system
• Ensure that employment contracts and restrictive covenants
are customised to deal with confidential information which
might be disseminated by social media
• Be careful when using social media to recruit employees
• Have a plan to deal with employee contacts generated by
social media on the termination of the employment contract
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40. Philip Nolan
pnolan@mhc.ie
Jeanne Kelly
jkelly@mhc.ie
Elizabeth Ryan
eryan@mhc.ie
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41. Thank you
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