Social media and its impact on employment

Giri Sivaraman, Principal
Alana Heffernan, Lawyer
19 November 2013
SOCIAL MEDIA AND ITS IMPACT
ON EMPLOYMENT

Maurice Blackburn acknowledges the
traditional owners of the land on which we
gather, and we pay our respects to elders
past and present.
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OUR HISTORY
 Founded in 1919
 Maurice Blackburn – distinguished lawyer and Labor member of Parliament.
 Dedicated to worker’s rights.
 Defence of underprivileged groups.
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CONTENTS
 The scale of social media
 Social media defined
 The blurring of public and private
 Social media, misconduct and unfair dismissal
 Freedom of speech
 Social media and professional registration
 Students’ use of social media
 Rate My Teacher
 Practical tips for bargaining
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THE SCALE OF SOCIAL MEDIA
 It is clear that Australians are embracing social media such as Twitter, Instagram,
MySpace and Facebook
 In 2010, the Nielson Company reported that Australians had the highest global
average for engaging with social media, an average of 7 hours per month per person
engagement with social media
 Facebook has 11,489,380 Australian users.
 25 % of these users don’t bother with privacy settings
 Twitter has 2,167,849 Active Australian Users
 Since the dawn of twitter there have been 164 billion tweets
 Instagram has 1,083,924 Active Australian Users
 More than 5 million pictures are uploaded to Instagram every 24 hours

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SOCIAL MEDIA DEFINED
 Social media refers to Internet sites and Mobile apps which allow individuals
and groups to develop content and share information via online networks of
people
 Includes sites such as Facebook, Instagram, Twitter, Vine, MySpace and
You Tube
 Is a form of mass communication

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THE PUBLIC AND THE PRIVATE:
THE DIMINISHING LINE
 In Rose v Telstra, Ross VP analysed when out of hours conduct can give
rise to a valid termination, namely when:
 Objectively viewed, the conduct is likely to cause damage to the
relationship between the employee and employer, or
 The conduct damages the employer’s interests, or
 The conduct is incompatible with the employee’s duty as an employee
 The conduct must be of such a nature as to indicate a repudiation of the
employment contract by the employee

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THE PUBLIC AND THE PRIVATE:
THE DIMINISHING LINE
 Cases where out-of-hours conduct has conflicted with the
employment relationship:
 Public Employment Office Department of Attorney-General and Justice
(Corrective Services NSW) v Silling [2012] NSWIRComm 118
 Campbell v Department of Education and Communities [2012]
NSWIRComm 1022

ARE MY SOCIAL MEDIA POSTS
PROTECTED BY FREEDOM OF
SPEECH?
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Freedom of speech
• Very limited right to freedom of speech in
Australia:
– No express provision in the Constitution
– Some defences at common law (i.e. in defamation)
– Some provisions in discrimination and human
rights laws
– Common law implied right if regarding matters
relating to politics and government (Australian
Capital Television Pty Ltd v Commonwealth (1992)
177 CLR 106)
12

“Politics and Government”
• Implied right to freedom of speech about politics and government is
limited.
• Banerji v Bowles [2013] FCCA 1052:
 Commonwealth Public Servant employed as a Public Officer by Department of Immigration used an
anonymous Twitter handle “@LALegale” tweeted/shared comments which were critical or mocking of the
security polices of the company which ran immigration detention centres, immigration policies of the Federal
Government, Scott Morrison (Shadow Immigration Minister), the Minster for Foreign Affairs, the Prime
Minister and employees of the Department
 Department investigated her tweets and she was found to have breached APS Code of Conduct and the
Departments guidelines on use of social media and proposed termination [par 30]
 Social Media guidelines provided it was inappropriate for Departmental employee to:
 make unofficial public comment that is or is perceived to be harsh or extreme criticism of Government,
member of Parliament or political party of their policies
 Strong criticism of the Departmental policies that could disrupt the workplace
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“Politics and Government”
Case Study: Banerji v Bowles (cont.)
 Banerji sought declarations that the finding was an unlawful curtailment of her Constitutional right of freedom of
political communications
 Court was dealing with an interlocutory injunction application by Banjeree and held as follows:
 there was no unfettered right of freedom of political communication in Australia [100]
 the right of political communication may be fettered
 Restriction imposed by law for limited purposes (even where they may incidentally diminish completely
the discussion of issues of government or politics) may be compatible with the Constitution
 It is only when the law in question is inconsistent with the intended operation of the system of
government created by the Constitution that the implied constitutional protection of freedom of
communication on matters of government and politics [101]
 In any event, a constitutional right does not provide a licence to breach a contract of employment [102]
14

Freedom of speech in the ACT
Human Rights Act 2004 (ACT) (binds ACT public
authorities), s 16:
“(1) Everyone has the right to hold opinions without
interference
(2) Everyone has the right to freedom of expression.
This right includes the freedom to seek, receive
and impart information and ideas of all kinds,
regardless of borders, whether orally, in writing or
in print, by way of art, or in another way
chosen by him or her.”
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Freedom of speech in Victoria
Charter of Human Rights and Responsibilities Act 2006,
s 15:
(1) Every person has the right to hold an opinion without interference.
(2) Every person has the right to freedom of expression which includes the
freedom to seek, receive and impart information and ideas of all kinds,
whether within or outside Victoria and whether-
…
16

Freedom of speech in Victoria
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
(3) Special duties and responsibilities are attached to the right of freedom of
expression and the right may be subject to lawful restrictions reasonably
necessary-
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public
morality.
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Other States
• Must rely on common law implied right –
must be related to politics and government.
• Defences in defamation law – usually contain
requirements as to reasonableness.
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SOCIAL MEDIA AND EMPLOYMENT
 This is the major area where social media and employment law intersect
 The cases appear to fall into a few categories:
 Employees expressing their frustrations with work online
 A Government employee making critical comment about government
policy
 Employees posting questionable photos during and after work hours
 Excessive use of social media during work hours
 Employees using LinkedIn to promote businesses competitive with their
employer
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PUBLISHING GRIEVANCES AND
NEGATIVE COMMENTS ONLINE
 Case 1: Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544
 In this case, it was held an employee published a negative blog on a MySpace page
following an unsubstantiated sexual harassment investigation was a valid reason for
dismissal
 The employee wrote on MySpace that management were “witch hunters” and that she had
just been through an investigation that “in the end advanced corruption”
 Thatcher C held that the employee’s conduct was a valid reason for dismissal
 The employee had not only published the blog but had refused to modify or remove it within
a reasonable time
 It was not necessary to consider whether the employer had a social media policy or whether
the employee’s conduct had damaged the relationship of mutual trust and confidence

21
Case 2: Campbell v Dept. Education and Communites [2012] NSWIRComm
1022
 Another decision where an employee’s social media post were found to justify
their dismissal
 Well respected English teacher who teaches ESL entered into a private
agreement with female students to learn Chinese
 Conducted the lessons in social settings, such as parks, restaurants and on his
boat
 Department has policies regulating contact between teachers and students
outside of the classroom
 Conduct was investigated and Campbell was dismissed

22
Case 2: Campbell (cont)
 Ritchie C stated:
“I do not accept the submission of the applicant that you can differentiate between
his role as a school teacher within school hours and role outside of school receiving
paid Chinese lessons from students of the school. The applicant remained a teacher
of the school and must abide by its Code of Conduct in interacting with students, be
it inside or outside of standard school hours”
 Campbell sought reinstatement. Had put denigrating comments on Facebook,
i.e.: “Twice in my life I have been sacked… funny the education department after
I eventually told them that they were a bunch of fuckwits that couldn’t run a
shithouse!!!”

23
Case 2: Campbell (cont)
Ritchie C found:
“Just what level of trust would now exist between the
parties taking into consideration the actions of the
applicant? It is my finding that I do not believe that there
would be any”.

24
Case 3: Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358
 Ms Fitzgerald wrote on her Facebook page: “Christmas ‘bonus’
alongside a job warning, followed by no holiday pay!!! WHOOOOO!
The hairdressing industry rocks man!!! Awesome!!!”
 Ms Fitzgerald had received less than she expected as a bonus and was
paid half her holiday pay by cheque rather than cash
 Ms Fitzgerald’s employment was terminated, including because the
Facebook posts

25
Case 3: Fitzgerald (cont)
 Bissett C: “Postings on Facebook and the general use of social networking sites by individuals
to display their displeasure with their employer or a co-worker are becoming more common.
What might previously have been a grumble about their employer over a coffee or drinks with
friends has turned into a posting on a website that, in some cases, may be seen by an unlimited
number of people. Posting comments about an employer on a website (Facebook) that can be
seen by an uncontrollable number of people is no longer a private matter but a public
comment.”
 held that Ms Fitzgerald’s posts were not detrimental to the business as it did not name the
workplace and there was no evidence that the 5 – 10 clients who were friends with Ms
Fitzgerald had read the comments. The posts didn’t name the employer, and were otherwise
private.

26
Case 4: Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444
 Full Bench found in the employee’s favour
 Mr Stutsel was dismissed for making negative comments on his
Facebook page about management, which management found
amounted to sex and racial discrimination
 The employee contended that the comments were not
derogatory and that he had maximum privacy settings on his
Facebook page

27
Case 4: Stutsel (cont)
 Roberts C held that the comments had “very much the favour of a group
of friends letting off steam and trying to outdo one another in being
outrageous”
 Roberts C was also critical of the company’s failure to have a social
media policy
 Roberts C ordered that Mr Stutsel be reinstated, finding the employment
relationship could be re-established
 Case was appealed to the FWC Full Bench. The appeal was dismissed
 Case now before Federal Court for judicial review

28
Case 4: Stutsel (cont)
 FWC Full Bench: Justice Boulton, SDP Harrison, Deegan C
 [25] The posting of derogatory, offensive and discriminatory statements or comments about
managers or other employees on Facebook might provide a valid reason for termination of
employment. In each case, the enquiry will be as to the nature of the comments and statements
made and the width of their publication. Comments made directly to managers and other
employees and given wide circulation in the workplace will be treated more seriously than if such
comments are shared privately by a few workmates in a social setting. In ordinary discourse there
is much discussion about what happens in our work lives and the people involved. In this regard
we are mindful of the need not to impose unrealistic standards of behaviour and discourse about
such matters or to ignore the realities of workplaces.

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POSTING OF PHOTOS ONLINE
Case 1: Antony Dekort v Johns River Tavern Pty Limited t/a Blacksmith’s Inn
Tavern [2010] FWA 3389
 The employee represented that he was unfit for duty on 30 and 31
December 2009 and sought to claim sick leave
 The employer had a photograph from a Facebook page showing the
employee participating in New Year’s Eve celebrations
 The employee was not able to explain his actions
 His Application was dismissed as having no reasonable prospects of
success

30
Case 2: Mayberry v Kijani Investments Pty Ltd ATF The Investments Trust
Subway Wallsend t/a Subway [2011] FWA 3496
 An employee was dismissed following a photo on Facebook of her posing in a
cardboard car at work during work hours
 The photo was posted on Facebook by a friend, with the caption: “Lee in mine
and Lees subway car. Broom broom toot toot.”
 The company alleged the employee had stolen its property to make the car and
had caused irreparable damage to the company name
 Macdonald C found that the employee’s dismissal was unfair because there was
no evidence of damage to the company name, the employee had not engaged in
theft and the dismissal was procedurally unfair

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Case 3
 In a recent decision, two employees of a pumps manufacturer were
fined $1,500.00 by the Victorian Magistrates’ Court after uploading
photographs of themselves planking at work
 They were dismissed from their employment
 They were charged with breaching the Victoria Occupational Health &
Safety Act
 No conviction was recorded

32
AAP, ‘Plankers bonkers? Workers fined for Facebook foolhardiness’, The Age, 8 September 2011

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EXCESSIVE SOCIAL MEDIA USE DURING
WORK HOURS
 Richard O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081
 The employer terminated the employee’s employment one day before his
resignation was due to take effect
 The employer discovered 3,000 chats in his Google mail account
 Gooley C concluded that excessive use of the social media for personal
reasons during work hours may constitute misconduct but there was
insufficient evidence to support a finding of misconduct in this case
 The company was ordered to pay the employee compensation for the day
he would have worked

Social media and professional
registration – some stats
• In 2009, 10 Western Australian teachers were
reprimanded by the disciplinary committee for
inappropriate online interaction with students, which
included teachers sharing private photos with students.
• 2008/2009 – 8 Queensland teachers disciplined by
Queensland College of Teachers for inappropriate
contact via ‘electronic equipment’.
34

Social media and registration
• Victorian Institute of Teaching and Craig
Pleydell (3/6/2013):
– Inappropriate messages to student via text and Facebook
– Important point from decision:
The teacher’s blurring of the professional boundaries
required by a teacher was not helped by an apparent lack of
clear policy regarding expectations at the school with
respect to the use of social media by staff.
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36
PRACTICAL TIPS FOR TEACHERS
USING SOCIAL MEDIA
1. There is no general right to privacy in Australia when it comes to social
media. Employers may be able to take disciplinary action against employees if
online activities has an impact on the employment relationship.
2. Be careful about bagging your boss, employer, clients or co-workers on
social media, particularly with an “open” social media account or are “friends”
with co-workers or clients.
3. Check social media privacy settings. You might want to consider having
them set at the highest possible level and avoid having your account accessible
by the public at large.

37
PRACTICAL TIPS FOR TEACHERS
USING SOCIAL MEDIA
4. Be careful in “liking” or “re-tweeting” comments which have negative
impact on your employer’s reputation. They may imply agreement.
5. Check to see if the employer has a policy regarding the use of social
media.
6. If you have open social media, think about how photos you post may be
perceived by prospective employers checking up on you.
“The probability of being watched is directly proportionate to the stupidity of
your act.”
Post from Stutsel

What about students’ use of
internet?

Students and social media
• As previously stated, there is limited freedom of speech in
Australia (except Victoria and ACT).
• Unless students are commenting on matters relating to
politics and government, it is unlikely that their posts are
protected by the implied right to freedom of speech.
• Accordingly, a teacher who is the subject of disparaging
remarks may have recourse at common law, and in some
cases, pursuant to discrimination and human rights
legislation.
39

Common law rights - defamation
Definition of “defamatory matter” differs across
the States and Territories.
In May 2005, the States and Territories reached
agreement on enacting uniform defamation
laws.
The uniform laws introduced a number
restrictions to defamation actions.
40

Restrictions to defamation actions
• Corporations (other than non-for-profit organisations or small businesses) cannot
sue for defamation;
• There are a number of defences, including a defence of "truth" and relevantly,
“innocent dissemination”;
• the time limit for bringing a defamation action has been reduced from six years to
one year (except in specific circumstances);
• There are no awards of punitive damages in civil defamation proceedings; and
• Juries are limited to determining whether a person has been defamed, leaving the
awarding of damages to judges
41

Who can sue?
• Any individual or entity who considers
damage to their reputation has or is likely to
occur, as a result of material published, may
sue the publisher/s of the material.
• In practice, the laws are largely inaccessible to
ordinary individuals who are defamed due to
the significant legal costs involved with
bringing a defamation action.
42

Who is able to be sued?
• Defamation action may be brought, not only
against the original publisher (writer/speaker),
but also against anyone who takes part in the
publication or re-publication of the material.
• Can be brought against both the original
publisher and the re-publisher in the same
proceedings.
43

Internet and defamation
• Internet users may be sued in relation to material
they write/publish themselves, or if they re-
publish/distribute material written by someone else.
• They may also be sued if another person publishes
something they wrote, for example, an email
published without the writer's permission on a web
site.
44

• Internet Service Providers (ISP) and Internet Content Hosts (ICH) may be
sued in relation to information published by someone else, for example,
published by a person who used an ISP's or ICH's system, web server, chat
boards, etc, to make information available via the Internet.
• The Broadcasting Services Act 1992 (Cth) provides a statutory defence to
an ISP/ICH who carries/hosts Internet content in Australia and who was
not aware that they were carrying/hosting a defamatory publication.
• Also provides that a law has no effect to the extent it would have the
effect of requiring, an internet content host/internet service provider to
monitor, make inquiries about, or keep records of, internet content
hosted/carried by the host/provider.
45

• Serious difficulties applying defamation legislation to
ICHs:
• Dow Jones & Co. Inc. v Gutnick [2002] HCA 56, 210
CLR 575:
– Where did the ‘publication’ occur?
– Dow Jones argued in New Jersey, as that is where its
servers are located.
– High Court rejected that argument and said the
reputational damage occurred in Victoria, where Gutnick
lived, and the publication occurred there.
– Therefore, Gutnick had a right to sue in Victoria.
46

Rate My Teacher
• Website that allows past and present students to review schools
and specific teachers.
• Students provide a star rating and are able to write comments. The
comments are publicly accessible.
• The contents of some of these comments are a cause for concern
for teachers and schools.
• Difficult to identify individuals posting comments if ‘username’ is
different to legal name (unlike Facebook).
• May need to contact site directly – see their policies:
http://au.ratemyteachers.com/info/RateRules
47

Rate My Teacher
• Policies contain specific rules in relation to postings and
appears to provide an undertaking about types of comments
that will be removed.
• Privacy policy provides for the disclosure of users’ personal
information in the event Rate My Teacher is of the view there
has been a violation of law or its policies.
• May be compelled to disclose users’ personal information in
the course of proceedings (either against the site or against
the user).
48

Rate My Teacher
• As previously stated, an ICH can be the subject of defamation
proceedings in Australia where the reputational damage
occurs here, however, there are difficulties with proving
liability.
• There are a number of defences available, such as “innocent
dissemination” and defences pursuant to the Broadcasting
Services Act 1992 (Cth).
• Given the costs associated with defamation proceedings,
contacting the site, then, if that does not work, sending a
“concerns notice” would be a logical first step.
49

Other actions
• Some internet posts may contain content that incites
hatred against minority groups.
• Protections from vilification under discrimination and
human rights legislation
• Unlike defamation, would need to take action against
the individual as opposed to an Internet Content
Host, as actions require intent.
50

Discrimination and vilification
• In Australia, it is unlawful to incite racial hatred.
• Racial Discrimination Act 1975 (Cth), s 18C:
It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely in all the circumstances to offend,
insult, humiliate or intimidate another person or group of people, and
(b) the act is done because of the race, colour or national or ethnic
origin of the other person or some or all of the people in the group.
51

• Three components of unlawful conduct:
1. The act is in public (i.e. a post on a social media site);
2. It is likely to offend, insult, humiliate or intimidate the
people against whom it is directed; and
3. It is done because of the race, colour or national or ethnic
origin of the group against whom it is directed.
52

Making a complaint
• Can make a complaint about racial vilification
to the Australian Human Rights Commission.
• Must make complaint within 1 year (except in
exceptional circumstances).
• Can seek a broad range of outcomes, such as
compensation and apologies.
53

• State and Territory laws:
– Australian Capital Territory Discrimination Act 1991 (ACT)
– New South Wales Anti-Discrimination Act 1977 (NSW)
– Northern Territory Anti-Discrimination Act 1996 (NT)
– Queensland Anti-Discrimination Act 1991 (QLD)
– South Australia Equal Opportunity Act 1984 (SA)
– Tasmania Anti-Discrimination Act 1998 (TAS)
– Victoria Equal Opportunity Act 1995 (VIC)
– Western Australia Equal Opportunity Act 1984 (WA)
54

New South Wales
• The New South Wales Anti-Discrimination Act 1977
also prohibits vilification on the basis of
homosexuality, transgender status and HIV/AIDS
status.
• Serious vilification is an offence.
• Complaints must also be made within 1 year and can
be made to the NSW Anti-Discrimination Board.
55

56
PRACTICAL TIPS FOR NEGOTIATING OR
BARGAINING A SOCIAL MEDIA POLICY
 A good policy might include the following:
 A definition of social media;
 Application of policy – to whom and when does the policy apply;
 How it interacts with surveillance laws and policies;
 Information about the difficulty of maintaining privacy in social media;
 Advice on whether employee use of social media will be monitored by the employer;
 Commitments about the action to be taken, and support offered to teachers, in relation
to students’ disparaging comments on social media sites;
 A set of clear rules and standards with which employees are expected to comply; and
 Information on the risk that social media for private communication will become public.

ANY QUESTIONS?
Giri Sivaraman
Principal – Employment and Industrial Law Section
 Ph: 02 8267 0953
 E: gsivaraman@mauriceblackburn.com.au
Alana Heffernan
Lawyer – Employment and Industrial Law Section
 Ph: 07 3016 0345
 E: aheffernan@mauriceblackburn.com.au
57

Personal Injury 58
This information is prepared for the purposes of the seminar conducted on 19 November 2013 only. The content of this paper is not legal
advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the
content of the foregoing but should take appropriate legal advice.

Social media and its impact on employment

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