Misconduct by social media - a global perspective

There is no escaping social media in today's world. Facebook, Twitter, Instagram and other social media services pervade almost every aspect of people's lives. In a world where lines between the public and private spheres are increasingly being blurred, so too are the lines between work lives and personal lives.

Social media can create valuable opportunities and lines of communication. However, for employers, social media use by employees (both inside and outside of the workplace) presents a myriad of complex and delicate issues:

• How can employers protect their interests, information and reputation when employees have at their fingertips a means of broadcasting ideas, information and criticism to the world?
• Can employers regulate employees' social media use and, if so, how?
• What are the implications of social media for privacy and data protection?
• Can an employer terminate an employee's employment for something they said or did on social media?

In this article, we address these questions for employers and also consider some of the key issues that social media use (and misuse) presents for employees. We consider global trends which are relevant to employers and explore these issues by drawing on our experience across a number of countries including Australia, France, Germany, Japan, Spain, Sweden and the UK.

Statutory regulation

Specific statutory regulation of social media use by employees and employers is yet to develop in most countries. In some countries, such as Australia and the UK, social media use is instead regulated by existing legislation regarding employers' collection of information and employees' right to privacy.

The ability of employers to dismiss and discipline employees for misconduct on social media has generally been dealt with under existing legislative provisions or existing duties and obligations of general application. In the UK and Australia, such issues have generally arisen in claims made in the statutory unfair dismissal or anti-discrimination jurisdictions. In other countries, these issues fall to be determined under the express or implied contractual duties owed by employees to their employers. For example, in Sweden, the use of social media by employees and employers is encapsulated in the employee's broad duty of loyalty. This duty implies that the employee must put the employer's interest before their own.

Social media policies

The role of social media policies in protecting a company's reputation and business interests has been subject to increasing attention. In countries such as Australia, Spain and the UK, it is common for larger corporations to have social media policies in place already, while the adoption of these policies by smaller organisations is growing. In contrast, social media policies remain relatively uncommon in many countries including France, Germany, Japan and Sweden. In France, the focus is instead on software policies that regulate the use of social media by employees during work hours and the use of company equipment.

It is important that a social media policy implements boundaries by clearly outlining what is considered acceptable behaviour on social media. The policy should be expressed widely enough to cover personal use outside of work, the protection of confidential information and intellectual property, and should prohibit the making of defamatory and derogatory remarks.

In countries where policies are uncommon, such as Sweden, regulation is generally instituted in the form of guidelines emphasising the need for employees to separate their roles as a private person and as a representative of the company. However, where a social media policy is in place, it is important for that policy to outline that a breach of the policy may lead to disciplinary action and to describe what that action might be. In some jurisdictions, such as France, it is important that the ability to discipline an employee for this misconduct is also balanced with any right to freedom of expression.

In addition to protecting their reputation, employers are often concerned about the misuse of social media using company equipment. To mitigate this risk, it is important that social media policies outline the appropriate use of company equipment. This may involve partial or total prohibition of the use of social media on such equipment. However, in some countries such as France, the policy may need to account for recognised rights of employees to "reasonable use" of social media during work time. It is also important for the employer to inform employees if they intend to monitor employees' use of company equipment.

However, social media use in employment is not all negative. In fact, many employers have official social media accounts and reap commercial benefits from the ability to reach a wide audience. So, it is important to frame the employer's social media policy in a manner that does not inhibit the use of social media for the employer's benefit. Where a policy permits the use of official accounts, it is generally beneficial to include guidelines for employees responsible for using official accounts.

Social media usage outside work hours

The ability of a company to regulate an employee's use of social media outside work hours has been the subject of considerable debate in many countries. The growing consensus is that employers can regulate an employee's use of social media outside of work hours if the employee's conduct has some connection to the company. In most countries, including Australia, France, Germany, Spain, Sweden and the UK, comments made on social media that damage an employer's reputation are considered to be sufficiently connected to the employer.

For example, in a 2013 Australian decision, the Fair Work Commission found that an employer had a valid reason to dismiss an employee who had made critical comments on the Facebook page of a third party that dealt with his employer, as well as offensive comments on his own Facebook page. The employee's account was private and he did not identify his employer. Nonetheless, the Fair Work Commission commented that although employees are entitled to their own opinions, they are "not entitled to disclose them to the 'world at large' where to do so would reflect poorly on the Company and/or damage its reputation and viability".

Similarly, in a recent UK decision, the dismissal of a pub employee who posted offensive comments about abusive patrons was upheld on the basis that the comments breached the employer's social media policy.

In Sweden, there will also be sufficient connection to the employer where the employee has a competitive business or is otherwise being disloyal to the employer.

In some jurisdictions, such as the UK, an employee may even be dismissed for comments that were unrelated to work, but were so offensive that they constituted gross misconduct. For example, in a recent UK decision, the appeal tribunal upheld the summary dismissal of an employee who made offensive remarks on his personal Twitter account about a broad cross-section of people including caravan drivers, the police and people with disability. A relevant factor was that the employee had a number of work-related followers and had made no attempt to apply privacy settings to the tweets.

However, even if an employee's misconduct on social media constitutes a valid reason for their dismissal, the employer must still have regard to other relevant factors limiting their ability to dismiss or discipline employees. For example, in some countries such as Australia, an employer must also ensure that they provide the employee with procedural fairness and that dismissal from employment is a proportionate response. This is highlighted by a recent Australian decision in which the Fair Work Commission found that social media comments by a public sector employee referring to clients as "spastics" and "whingeing junkies" provided a valid reason for dismissal. However, the Fair Work Commission found that due to the employee's 20 years of service and the fact that it was the only job he had held since he was 19 years old, the dismissal was harsh.

Freedom of expression

The extent to which employees have freedom to express a personal or political opinion is a key issue in all jurisdictions when considering the ability of employers to discipline employees for conduct engaged in on social media, particularly given social media-related conduct is often regarded as personal in nature.

In some countries, employees have constitutional rights to freedom of expression in their private life, including in Germany, Spain and Sweden. In France, freedom of expression of employees is broadly protected both inside and outside the workplace, under the Labour Code. In many European countries, including Sweden and the UK, employees also have rights, deriving from the European Convention of Human Rights, to respect for private life and freedom of expression.

In contrast, Australian employees do not have an express constitutional right to freedom of expression. Employees do have the benefit of limited implied rights, such as the freedom of political communication which exists under Australia's Constitution. The extent to which this right interacts with an employee's obligations to their employer has been the subject of some judicial consideration, with courts and tribunals recently appearing more willing to give weight to the freedom. This is demonstrated in a recent case where the Federal Court set aside a decision of the Chief of Defence Force to discharge an Army Reserve member who made derogatory comments about gay and transgender people. The Court found that the implied freedom of political communication operated to limit the employer's capacity to discipline the member for making comments that, although insulting, constituted political discourse. We anticipate that this area of law will continue to develop.

Even where employees have a recognised right of freedom of expression or communication, it is not absolute and is subject to limitations which protect the rights of others, including employers. For example, an employee's right to make comment often does not extend to public conduct which damages the reputation or commercial interests of the employer or breaches employment-related confidentiality obligations. Consideration of these issues often requires a balancing act, guided by the degree to which the conduct is reasonably connected to, or impacts on, the employment relationship - for example, because it is inconsistent with an employee's obligations or brings the employer into disrepute.

In a UK case where an employee made disparaging comments about his employer on social media, the court found that the employer's interest in protecting its reputation provided an allowable justification for limiting freedom of expression, and that the comments were not the type of comment that were particularly important for the purposes of freedom of expression. Similarly, in Spain, the High Court of Andalucía found that a company which dismissed an employee for uploading pictures with "funny and insulting" comments towards another colleague on Facebook did not breach her rights because those comments exceeded the limits of the right of freedom of expression and implied a clear disrespect towards the employee's colleague.

It is important to note that when an employee uses social media to act as a "whistleblower" on alleged misconduct or malpractice, different issues may arise - laws relating to public interest disclosures, informer's privilege or whistleblower protection may give an employee protection in relation to such disclosures.

Examples of employee social media misuse

There are almost no limits to the many creative ways in which employees can use and misuse social media in relation to their employment. In our experience, the type of misuse tends to vary between countries, depending on which platforms are most popular in that country and how people use social media in particular cultures. There are also differences in the kinds of social media misuse that occurs in different industries.

In Australia, the majority of cases involve employees taking to social media (usually Facebook) to complain about their employers and colleagues or to post inappropriate material which can be regarded as bringing their employer into disrepute. These cases often involve a question as to the extent to which personal conduct outside the workplace comes within the scope of employment and may be the subject of disciplinary action, meaning many decisions are specific to the factual circumstances of the case.

By contrast, in Japan, where Twitter is the most popular form of social media, employee misconduct often arises where employees tweet confidential information regarding their workplace. Cases have involved everything from hotel employees tweeting the identities and locations of celebrity guests, to employees of food shops posting pictures of hygiene or safety violations. This has also been an issue in other countries, including Spain. In one Madrid case, the High Court held that publishing a funny story about a client on Facebook without disclosing the data of the client was not serious enough to justify the employee's dismissal. Recent cases in Germany include employees posting racist comments and hate speech on social media websites in relation to the "refugee crisis", and an employee who was dismissed for "liking" a Facebook comment by her husband in which he insulted her employer.

Cyberbullying

One common issue across many countries is cyberbullying. The extent to which legislation relating to workplace bullying extends to conduct engaged in online is an area of emerging jurisprudence, although the issue is more expressly regulated in some countries than others.

In Australia, the Fair Work Commission has recognised in a 2014 case that comments on social media posted outside of work hours can provide the basis for a workplace bullying application if the recipient later accesses the content at work. Similarly, in the UK, an employer was held to be vicariously liable for a comment which two staff members left on their manager's Facebook page which amounted to sexual orientation harassment. Although the comment was posted during working hours, the tribunal indicated that it may have arrived at the same decision even if the comment had been posted out of working hours. This is because the test of what is done "in the course of employment" is a wide one, and the fact that an employee is at home, is using his or her own IT equipment and has posted content out of working hours will not automatically mean that the actions are not in the "course of employment".

In other countries, actions which amount to cyberbullying or harassment have also been found to justify dismissal of employees. In Spain, a court has found that it was fair to dismiss an employee who had published intimidating comments (including comments inciting violence) about a manager of the company on his blog. In France, a court held that it was valid to dismiss employees who used Facebook to create a virtual club aimed at denigrating their superiors.

Issues regarding cyberbullying are also being discussed in Japan, where bullying legislation covers only national and local governments and schools, but there is no regulation which specifically addresses cyberbullying.

Defamation

One of the characteristic features of social media is that it is almost inescapably public. Whether the intended audience is small or large, once something is published online it can be difficult to delete the content and it has the potential to "go viral". An Australian court has referred to this as "the grapevine effect".

Another characteristic of social media is the relative anonymity with which it allows people to act. Online, away from real-world relationships and consequences, people appear to have a greater tendency to broadcast opinions which are insulting, critical, disparaging or embarrassing - things they might never say to a person's face, especially if that person is a work colleague or their boss.

The combination of these two features means that social media presents a fertile ground for potential defamation litigation by a person who is the subject of online comments. A person who feels they have been defamed on social media may bring a defamation claim against the person making the comment, or even that person's employer.

Defamation can give rise to civil (and, in some countries, criminal) sanctions, and in countries where people have a recognised freedom of speech or expression, that freedom does not usually extend to a freedom to defame others.

Whether any particular post is defamatory will depend on its content, the way it is published and to whom it is communicated. There are examples of cases involving alleged defamation over social media, such as one Japanese case where a person posted defamatory statements about an orthopaedic clinic on a popular local social media platform, and the clinic made a successful claim for damages caused by the defamation.

Employers should be aware of the risk that social media posts could be found to be defamatory, and should take steps to prevent employees from making defamatory statements during work time or on work devices, and to communicate that the employer does not condone or endorse any statements made by employees outside of work.

Intellectual property and confidential information

Employee use of social media to disclose or obtain confidential information creates an intersection between intellectual property and employment laws.

In Japan, if the disclosure by an employee of an employer's confidential information through social media includes information about non-compliance with laws or illegal acts of the employer, the employer cannot dismiss an employee, provided the employee can show that the disclosed information was true or that the employee had a reasonable reason for having considered the disclosed information to be true.

In Spain, there has been jurisprudence involving a security guard at a hotel who was dismissed on disciplinary grounds because, among other infringements, she posted on her Twitter account that Justin Bieber and Ricky Martin were in the hotel that day. Although the High Court of Justice of Cataluña did not analyse the fairness of the dismissal (the company had conceded the unfairness of the dismissal), the employer initially considered that the disclosure of such information in social media constituted a breach of the company's confidentiality policy.

In Australia, a 2012 NSW Supreme Court interlocutory decision related to the use of an employee's LinkedIn contacts. In this case, Ms Marianna Tuccia had previously worked for Naiman Clarke as a legal recruiter and had worked with two employers since. Naiman Clarke commenced proceedings, alleging that Ms Tuccia had breached confidentiality and restraint clauses in her employment contract by using a list of potential candidates for jobs contained in an Excel spreadsheet to establish connections on LinkedIn with the potential candidates. Ms Tuccia used her LinkedIn account to post job opportunities. Naiman Clarke alleged that the spreadsheet contained confidential information and that, by virtue of the connections Ms Tuccia established, she took this confidential information with her when she left her employment with Naiman Clarke.

The matter did not proceed to a final decision but demonstrates growing concerns by employers about the unauthorised disclosure and use of the employer's confidential information and intellectual property through social media sites such as LinkedIn. The issue is particularly problematic when an employee leaves the company - who owns the business contact list at this time? If an employee uses the site to contact clients, suppliers or competitors, will this breach post-termination restrictive covenants? As this area of the law continues to develop, employers may need to consider these issues when drafting their employment contracts and policies.

Data protection and privacy

Generally, courts have taken the approach that publicly available posts on social media can be relied upon by employers where there is a connection to the employee's employment. However, privacy issues arise if the posts are not publicly available or where the employer has undertaken surveillance of IT equipment used by an employee in order to monitor their activities.

In France, the courts have generally taken the view that social media is in the public domain and so statements made on social media are not protected by the regulations protecting private correspondence. However, a statement made on social media by an employee where the employee has limited the access to his or her publications on the social media site are generally considered private correspondence that is therefore protected and, as such, cannot be used by the employer against the employee to justify disciplinary sanction.

In Spain, although social media has not been specifically addressed in case law, the Spanish Supreme Court has established that an employer's IT equipment and devices are working tools provided and owned by the company and, therefore, employers may monitor and control the use of such tools by employees without their consent.

Similarly, in Japan, an employer has a general freedom to monitor their employee's actions, including, for example, their use of the company's email systems or PC, where monitoring is necessary to maintain workplace order, or where the employer's work rule or employment contract clearly provides the employer with a right to monitor and investigate employees' actions. However, a court may review the reasonableness of the monitoring in each case.

In Australia, the Federal Court has, in at least one case, considered the application of privacy laws to employers who monitor employer-provided computing equipment used by employees. While this case involved surveillance of an employee's laptop and audit of his searches relating to accessing pornography in his personal time, the case raises interesting questions for employers about the way in which privacy law may impact regulation of an employer's use of social media. The employee argued that the employer's policy regarding the use of information and communications technology breached the Privacy Act 1988 and, in particular, the Australian Privacy Principles.

The court concluded that there was no breach of the Australian Privacy Principles because:

• the collection of the information was for the lawful and legitimate purpose of ensuring the employer's equipment did not come into contact with pornographic material at any time;
• the collection of the information was not unfair because the surveillance had collected the very thing it was intended to collect, being information about breaches of the employer's Code of Conduct, of which the employee was notified and aware; and
• there was no infringement of privacy, as the employee's laptop was not owned by him and he had been warned that it would be monitored with a view to collecting information about use of websites, such as pornography.

Interestingly, the Court commented that a potential breach may have arisen if the surveillance was disproportionate to the type of information collected (for example, if the information collected was the employee's personal bank details).

Although the courts have recognised some scope for employers to monitor employees' use of company IT, employers should consider applicable privacy laws and take care when undertaking any surveillance and monitoring of employee's social media use, including in circumstances where the employer is investigating alleged misconduct or a breach of employer policy.

Pre-employment screening

In Australia, France, Spain and the UK, employers are increasingly using social media to monitor potential candidates as a recruitment tool. A 2013 ACAS research paper found that 61 per cent of employers in the UK used social media as part of their recruitment process and a further 15 per cent planned to start doing so in the future. According to the website Infojobs, in Spain in 2015, one out of three companies confirmed that they had disregarded a candidate during the selection process due to his or her digital profile.

Notably, in Germany, there are a variety of restrictions regarding pre-employment screening. The general rule is that business-related websites, such as LinkedIn and XING, may be used by employers to obtain information about future employees. However, the use of leisure-oriented social media websites, such as Facebook and Instagram, is not permitted.

In Japan, some employers require that employees submit their social media account names prior to employment for use at the recruitment stage and, if the candidate is successful, during the employee's employment. This practice is not widespread, and there is a real possibility that a court would consider such a requirement to infringe Japanese laws regarding rights to freedom of expression and privacy.

Employers who rely upon social media profiles during recruitment should be aware of the potential for discrimination claims. If, for example, an employer learns about a candidate's religion or sexual orientation through social media and decides not to hire the individual based on that information, the employer may have breached discrimination laws. Employers using social media for recruitment purposes should maintain consistent practices for all applicants, regardless of their race, gender or other protected characteristics, to ensure that they are taking a uniform and non-discriminatory approach to their recruitment processes.

Where to from here?

Social media is a part of modern life that is here to stay. So too are the opportunities and complex problems it presents to employers. The task of balancing employees' rights and interests against those of employers is not a simple one and, in many instances, the law is grappling with the evolving role that social media plays in employees' social and work lives.

In many cases, employees' social media use can be regulated within existing legal frameworks, such as those applicable to the use of employer property, the protection of data and confidential information, and laws against discrimination, harassment or bullying. Other means of regulating social media use and misuse by employees are still developing. However, it is generally the case that there are options available to employers to protect their legitimate business interests. In particular, as we have identified, there is also a growing consensus that employers can regulate employees' behaviour on social media outside of work hours provided there is a connection to the employee's employment or the employer.

Please click on the links below for the other articles in the May 2016 edition of Ashurst's World@Work

• German employees who use their own devices for work - problems and solutions
• Update on the Australian anti-bullying regime
• Under pressure? Japan legislates mandatory stress checks
• Mandatory gender pay reporting in the UK for large employers
• French Supreme Court allows claim by trade union for employer's data protection breach
• The implications of Brexit for employment law in the UK