12.11.2023 Osian Barnes
Consultant employment solicitor Michael Sissons at Cubism Law talks here about how to avoid legal and HR nightmares around employees use of social media for business, by getting your procedures right before you hire people.
Michael, we have been looking recently the growing importance of social media skills in the workplace, and wanted to talk to you about some of the issues arising as social media comes more to the fore, and get your take on some of the legal or contractual requirements that are popping up in your world.
When you say legal requirements, one has to break that down a little bit, and it depends what area we are talking about.
For example, if one takes the area of confidential information; there is an obvious issue with social media and matters that might be business-sensitive. With confidential information itself, one can break it down legally so that confidential information which could be classed as a trade secret, something like the “Colonel’s secret recipe”, can be protected before and after employment, without an express covenant. But, you have also got confidential information which must not be disclosed while employment continues, and can be protected after the termination of employment by an express restriction.
Employers are doing the right thing by regulating in their contracts what happens with confidential information, who it belongs to, what you can and cannot do with it.
So, how is this specifically being applied to social media? I can see that what you are saying has a very wide application. Have things changed in your opinion? Have they had to be made tighter or re-worded because of the growth in social media for business?
Definitely - People’s lives are in essence bleeding into online personae, and they almost do not realise what they are doing when they post things. I see, daily, people saying what they are doing at work, what is annoying them…
On LinkedIn – which employers are encouraging their staff to go on to – there is a big issue in terms of the contacts that are being made by employees, who do they belong to?
If you are an employer, you really do need to look at your contract and employee policies and ask yourself the question “are these issues being addressed?”
So let us just clarify, are you suggesting that there might be a case where an employee who is made redundant or sacked is required to give up some of those LinkedIn contacts, made during that employment?
It is possible to impose a restriction requiring an employee to give up contacts that have been made during their employment with that employer. Not all employers do it, but it is increasingly common.
Interesting… so, what about the contact’s view? The person who is the third party contact who happens to like that employee, or former employee?
Well, that takes us into the realm of the practical, rather than that of the legal. It’s a very good point and not one that has been tested in court. It begs the question though, by insisting that somebody strip their LinkedIn account of these contacts, is that actually going to be damaging an employer more than it is protecting it? It really is a rhetorical question: it might do, it might not - it all depends on the circumstances.
Have you had any instances where you have had to advise an employer or an employee on this, Michael?
It crops up all the time, especially as one of the things an employment lawyer will very often do is advise employers and employees on issues arising on the termination of a contract. One has to make it clear, if restrictions are being imposed, what they mean practically to the individual or the organisation.
In this regard, I wanted to have your thoughts on a couple of high-profile examples illustrating some of the potential issues in this area: one involved HMV, where the social media manager was tweeting while people were being made redundant; and the other was from a coffee shop where a waitress had scribbled something about the tips on a receipt, put it on Instagram, and she got sacked. I do not know if you have come across these kinds of situations.
I am absolutely familiar with the HMV scenario, and it is a prime example. As I understand it, the individual who was posting the tweets set up the HMV account – the account of this enormous company – while she was an intern. There was absolutely no management structure there; she knew the password for the account and posted daily. So when it came to the “night of the long knives”, the company suddenly realised that she was posting things they did not want, and were running around like headless chickens trying to stop it. Again, it brings us back to what does your contract say? Do you have policies on this matter? Who actually holds the password? Passwords are really quite important.
So, in addition to addressing it in the contract, would you suggest that organisations have policies or guidelines around social media usage?
Absolutely - but not just social media usage, it goes beyond that. When somebody is posting [for your business], you will need to have policies relating to the nature and content of what is posted. You want people to be speaking knowledgably, to add value; to respond to mistakes quickly; not to be argumentative, to be respectful. Very often people do not give a thought to such things, but it is crucial.
It’s interesting that you say that because, given this is social media, there are those who would say “we want people to be able to act as freely as possible in the social spaces, and not have to run every tweet they make past the lawyers.”
Well, absolutely not. But, it does make sense to establish a few ground rules, so that you do not have to run them past the lawyers every time.
There was another big issue in this area earlier in the year, involving t-shirts - sold on Amazon -displaying very offensive slogans. The company that produced them immediately issued an apology, and very quickly closed down their Twitter and Facebook accounts, but Amazon just tried to ignore it. They tried to pretend it was not happening. They had removed complaints from their Facebook page and really did just ignore it completely…
Of course, you cannot do that. As soon as it has been re-tweeted or someone has taken a screen-grab it is out there, for good.
The really simple message here is stop it happening in the first place, as best you can. I think it is worth saying that employers are vicariously liable for the acts of their employees during the course of employment. So if an employee posts, say, discriminatory comments on Facebook or on a blog etc, there is a possibility that an employer could be held liable for them.
That is quite a serious issue, and again, you could find that a well-drafted policy can marry in with an employer’s equal opportunities and harassment policies; it should be clear what is expected and what the possible implications of ill-crafted tweets or blog posts, could be, both for the individual and for the company.
That is a really interesting point - do you know if that would apply if a company had outsourced its social media management to a third party?
That is a very good question and one that I would have to give a little thought to. I think it would depend on what the circumstances of the situation were.
I remember there was a case of an agency working for one of the big US car manufacturers, who made a disparaging comment about Detroit, on behalf of the car manufacturer, on their Twitter account. As result, the car manufacturer sacked the agency, and the agency sacked the intern or junior who made the comment. So it would seem it does happen.
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This interview with Michael was taken from Show 6 of The Social Media Show (co-hosted by Equinet's very own Eric Swain) and followed on from a discussion with Steve Ward that covered social media skills in the workplace.
