Can employees be held liable for social media posts?
Paige Tompkins, January 28, 2020
How should businesses manage an incident where a senior individual has made controversial comments on social media that have a negative impact on the business?
The Houston Rockets basketball team have become all too familiar with this issue of late when general manager Daryl Morey tweeted support for the ongoing protests in Hong Kong – "Fight For Freedom, Stand With Hong Kong." He was swiftly met with criticism from Chinese fans, sponsors and commercial partners.
While Morey was quick to delete the tweet, and released a statement that he "had had a lot of opportunity since that tweet to hear and consider other perspectives", it was too little too late.
Chinese broadcasters and streaming channels made their dissatisfaction clear, confirming that they would no longer broadcast the Rockets' games to millions of Chinese fans.
Clearly the consequences for business can be huge when employees air controversial opinions on social media. In such circumstances does an employer have any recourse against the employee?
There is a balancing act between an employee's right to exercise freedom of expression under Article 10 of the Human Rights Act 1998 and an employer seeking to protect their legitimate business interests.
While freedom of expression should be maintained, case law has determined that an employer has the right to seek to protect legitimate business interests.
In circumstances where an employer's legitimate business interest has been compromised it may be appropriate to discipline the employee for their actions in accordance with the employer’s disciplinary process and, if applicable, social media policy.
Risk-averse employers should have a social media policy that sets out the standard employees are required to adhere to on business and personal social media accounts. It should expressly state that any breaches of the policy will be dealt with in accordance with the employer’s disciplinary policy.
A social media policy should remind employees that social media posts may be public and that conduct outside of the workplace, in some circumstances, can be viewed as an extension of the workplace.
Employers should also remind employees of the 'disinhibition effect' (when people say things on social media they would never say in real life). Employees should therefore be cautioned to consider whether their post may amount to harassment, discrimination or malicious conduct.
If the employee deems their content to be controversial but still appropriate to post it may be prudent for them to include a disclaimer stating that the views and opinions expressed are their own and not those of their employer.
Unless authorised, under no circumstances should posts be made by employees in the employer's name or be made attributable to the employer.
An employer has a right to monitor their employees' use of social media on work computers and phones. This right does not extend to logging into any social media accounts belonging to employees, with a view to respecting the right to a private life under Article 8 of the Human Rights Act.
However, employees should be reminded that this does not prevent an employer from viewing a social media account, particularly if posts are public. Private or deleted posts may in some circumstances be drawn to an employer’s attention if they have been screenshotted by colleagues or clients.
In addition to a social media policy, employers should also remind employees of the contractual implied duty of mutual trust and confidence.
That is, that the employee (and of course the employer) should not act in a manner that is calculated to or likely to destroy or seriously damage the relationship of mutual trust and confidence between parties.
Publicly posting comments that are damaging to an employer's business can be destructive of trust and confidence if the posts are sufficiently serious.
Having a well-drafted social media policy and disciplinary procedure, and clearly communicating to employees the standards that are expected of them and the extent to which their social media use can be lawfully monitored, are therefore key in managing the risks posed by social media.
Paige Tompkins is an associate at Payne Hicks Beach