Industrious Conversations: Managing employee social media influencers

Trent Sebbens:

Hello and welcome to Ashurst Legal Outlook and the latest episode of our Industrious Conversations series.

My name is Trent Sebbens, and I'm a partner in Ashurst’s Employment practice in Sydney, in Australia.

Today, we'll be diving into a topic that's becoming increasingly relevant in modern workplaces: the rise of online creators and influencers within the workforce and the legal challenges and opportunities this presents for employers.

Not so long ago, online creators were simply a source of entertainment in our downtime. Now they're making their presence felt in our offices, as well as in courtrooms and even in the way we share and consume information about our professional lives.

In fact, over 82% of Australians now use social media, and nearly half of us check our accounts multiple times a day. Across Australia, there are about 20 million social media users and Australians spend on average six hours and 20 minutes per week on social media. Globally, the influencer and creator economy is booming. Influencer marketing was projected to be worth over US$30 billion by 2025.

From employees recording TikToks in court corridors to sharing “day in the life” videos, the boundaries between personal and professional online activity are really blurring. This shift brings with it a host of legal considerations, particularly around confidentiality, social media policies and compliance with court rules.

Trent Sebbens:

To help us explore this topic. I'm joined by Rebecca Cope, a partner in our Digital Economy team. Hi Rebecca, and welcome to the show.

Rebecca Cope:

Hi Trent. Great to be with you. SoI'm a tech, data and privacy lawyer, and so I work a lot with digital platforms, and I think I definitely approach this issue from a particular point of view because of that, and I'm really interested in hearing about the “employment law lens” on the topic.

And at this point, I should probably confess to the fact that I follow a number of fashion influencers who make it pretty clear that they work in the legal profession, and I do sometimes feel a bit nervous when I'm watching when it seems they might be straying from recommending a comfortable, professional loafer to something that perhaps hints more at what they're working on, or potentially verges on disclosing confidential information!

So I guess my first question for you, Trent is whether you think confidentiality has become more complicated in the workplace? And if so, have you got a theory as to why?

Trent Sebbens:

Yes, I think it has in recent times, Rebecca. I think in particular, with the #MeToo movement and also COVID, and just the way in which we've changed the way that we're working, that really the enforcement of confidentiality in the workplace has become pretty important because of those developments – as well as that shift that we've seen to remote and hybrid working – meaning there's really just less physical oversight in the traditional office setting, as well as the rise of more digital tools that we're all using, as well as greater flexibility in relation to the way in which we work and when we work.

So there's really just more opportunity, I think, for social content that your workers might be getting tied up in becoming work-related and possibly disclosing confidential information. As the statistics show us, social media access is nearly universally adopted by everyone, and it's just become part of our daily lives. So when people are active online, the chance their personal and work lives start to intersect really increases.

There's also now a positive duty on employers to eliminate sexual harassment in Australia, and there's really growing scrutiny over the appropriateness of confidentiality and non-disclosure agreements. So we're seeing both the Australian Human Rights Commission and the Victorian Government questioning whether these agreements are always suitable, especially when they might silence victims or prevent transparency.

I think, as well, a generational change has really led to this becoming a critical issue. We've got a new generation of employees who are used to sharing their lives online, and that can lead to a misunderstanding, I think, about what information is confidential versus what can be shared. So employers need to regularly review and update their social media as well as confidentiality policies, making it clear when employees can associate themselves with their employer online and when they just need to identify as themselves in their own personal capacity.

So training and induction processes are going to be pretty critical on that front, so that employees understand the importance of confidentiality in the workplace.

I think employers also need to consider that confidentiality isn't just about sensitive business information. Posts by influencers may also involve personal data about co-workers or about clients, and that can start to engage privacy and data protection obligations. For example, sharing screenshots of internal systems or customer communications could amount to a breach of privacy laws and expose organisations to claims.

And we've perhaps heard of this word “virality” and a post “going viral”, meaning that a single post by an employee could quickly become public, resulting in some reputational damage to employers being pretty swift and hard to contain.

So really, with that landscape, I think certainly confidentiality is becoming harder to enforce.. What do you think are some of the specific legal risks that employers face when their employees act as online influencers, particularly if they're posting about legal proceedings or internal matters?

Rebecca Cope:

Trent, I think you've just touched on the major one for me, which is the privacy law impacts. So as you were saying, influencer activity can involve posting videos, photos or screenshots of the workplace, and there's a real risk that that can inadvertently expose personal data. It could be personal data of customers or of colleagues, and if you're talking about Australia, then that could trigger consequences under the Privacy Act.

But you've also got to remember that social media is global in its nature, and so there may also be other considerations, like GDPR, for example, when we're talking about the EU.

It's also worth flagging that there's a new statutory tort in Australia for serious invasions of privacy. And what this means is that individuals can now sue directly for intentional or reckless invasions of privacy.

So when we're talking about this in the context of an influencer in the workplace, if their employer knows that their employee is an influencer and has access to this kind of sensitive information and does nothing to prevent its misuse, then it's possible that under this new law, they could be found reckless and liable for the damages that could arise from that kind of conduct.

But outside of my little data regulation sphere, there's so many other things that need to be considered as well. Intellectual property is a big one. Your post can reveal much more than what was intended. A casual “day in the life” kind of video can capture maybe a whiteboard that has client names or an unreleased product sitting on the papers on your desk. And that kind of display could constitute disclosure of trade secrets or of copyrighted material, and that can put the employer's IP at risk, and in some sectors, it could even amount to a regulatory breach.

And of course, with any kind of public statement, there's also the risk of defamation and – more in your area – the risk of harassment. So if your employees are perhaps not posting positive “day in the life” posts – they are going down the path of maybe saying less than favourable things about their colleagues or about their employer, they can then expose themselves and their employer to legal action, and employers could then be held liable if they're not taking steps to remove that harmful content. And in extreme cases, extremely offensive posts could even breach the criminal law.

And then Trent, as you flagged, when we're talking about posts that might be made in the context of legal proceedings, there's a lot of other factors that need to be considered as well, like recording on court premises is strictly prohibited in Australia unless a judicial officer gives explicit permission. So that means employees who are recording TikToks, perhaps, or other content in court corridors, are potentially breaking the law by doing so, and there's also the risk of contempt of court. So if an employee posts about ongoing litigation, particularly if that's in a way that could influence the outcome or pressure another party to the litigation, this could be seen as “improper interference” with the administration of justice. Courts have granted injunctions to stop this kind of behaviour, and contempt of court can even result in imprisonment. But there would also be a lot of impacts in your area of practice, right?

Trent Sebbens:

Yes definitely there are, and you've mentioned one of them already: harassment.

I think employment and discrimination law certainly has an intersection with social media influencers and them engaging in conduct. We've certainly seen in Australia over the past decade or so, a series of cases, before the advent of influencers, of employees engaging in outside-of-hours posting and whether or not that could be a basis for an employer to take disciplinary action against them.

Probably the most significant of those cases was one that reached all the way to the High Court: ComCare and Banerji (2019). It considered an Australian public servant who said that she was expressing a political opinion in social media posts. The question was whether or not the disciplinary action, which was a dismissal, was appropriate and available as an option to her employer, the Australian Public Service.

In that case, the individual themselves posted over 9,000 tweets on what used to be called Twitter, now called X, using the handle at @Lalegal, and they were pretty critical of the former employer that they worked for. It was a department of the Government. That department became aware of those tweets through some co-workers reporting the conduct to them, and they then dismissed the poster.

The High Court eventually upheld that that “decision to dismiss” was open to her employer, really because of the impact of the tweets upon the reputation of the department and the Government.

More recently, we've seen some cases in the UK. For example, a case called Higgs vs Farmor’s School, which reached the Court of Appeal, and held that an employee's dismissal for social media posts about gender and same sex marriage, was not objectively justified and amounted to unlawful discrimination.

So it highlights the way in which these cases can sometimes swing, and the disciplining of employees for their online content can clash with protections that they might have in relation to expressions of religious or philosophical beliefs.

I think there are two other areas, sort of tangential to my area of expertise. But one being consumer law. So employers themselves could face consumer law protection risks. If influencers, who are your employees, promote products without disclosing their commercial connection, they could fall foul of advertising regulators. And we've seen that in the UK, with the Advertising Standards Authority having sanctioned influencers for failing to label posts as ads, as well as in the US, with the Federal Trade Commission issuing penalties for inadequate disclosures.Employees’ influencer activities could intersect with an employer's products or services and make the employer possibly liable for those posts that their employees are making.

One final area which is a little bit closer to my area, is whistleblowing. Many social media users can sometimes take the view that they are actually “whistleblowers” and that they're using a social media platform as a whistleblowing forum. Now, on the face of it, doing that would not engage the protections of the whistleblower regime in Australia, as it's not being made to an authorised recipient, nor in a particular appropriate way. But managing an employee who considers themselves to be a whistleblower and that they're using social media for this purpose can then become pretty challenging for the employer in addressing this particular conduct.

So given those matters. Rebecca, maybe we should turn our minds to what that means.

Rebecca Cope:

Yes, absolutely. I'd be interested in your practical tips on what employers perhaps should be doing to try and protect themselves and their employees as well in this kind of environment?

Trent Sebbens:

I think there are a couple of tips.

One is employers should really start ensuring that their social media and confidentiality policies are up to date and that they're clearly communicated to staff. Those policies should be pretty specific about when employees can reference their own employer or their fellow colleagues, co-workers, and what information is also off limits. That's going to be pretty important if you're going to take disciplinary action against an employee for engaging in social media posting.

Regular training as well is also essential, especially for new employees who may not have the same understanding of confidentiality as previous generations of workers, or just may not have been exposed to that policy if it hasn't been rolled out or trained on in recent times.

And employers should really be monitoring for potential breaches as well as acting on them quickly, including to remove harmful content and to take action against employees as they consider necessary.

I think it's also important, just from a cultural perspective, to foster a workplace culture that values privacy as well as respect for others’ and professionalism.This approach should be for both online and offline conduct.

And by taking those steps, I think employers can better manage the risks associated with employee influencers and protect their organisation from legal liability.

I think perhaps a final comment; other practical tips could include requiring employees who are social influencers to declare those side gigs or their status as an influencer, particularly if that is going to overlap with their employer and industry. So policies themselves could give concrete examples of prohibited conduct, such as filming inside your premises or live streaming within your premises or prohibiting promoting competitors’ products.

Employers may also want to engage in some scenario planning, to deal with viral incidents and to make sure that their public relations, human resources, and legal teams are all aligned in their response.

So Rebecca, the intersection of social media and employment law is pretty clear. Your area – privacy, defamation and a whole raft of other things – is also going to become more important as the digital landscape evolves.

We'll continue to follow these issues closely at Ashurst.

Thanks very much for talking through that with me today, Rebecca.

Rebecca Cope:

You're very welcome. Thanks for having me, Trent.

Trent Sebbens:

Thank you for listening to this episode of Industrious Conversations, which is part of Ashurst's Legal Outlook podcast. If you'd like to discuss any of the issues raised in today's discussion, please feel free to reach out to me, Trent Sebbens, or my colleague, Rebecca Cope. Our contact details are on the Ashurst website.

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Thanks again for listening, and goodbye for now.