Social media has revolutionised the way we communicate. With over half of the world’s population actively using social media, employers need to be aware of the impact their employees’ activity could have on their reputation. Be it an off-the-cuff comment on a Facebook post, a risky Snapchat or an overtly offensive WhatsApp message, both employers and employees should be aware of the potential consequences.
Social media policies
You need make it clear, as a business, what is acceptable or indeed unacceptable when communicating on social media and the most effective way to do this is by creating a clear and comprehensive social media policy.
Social media policies help set the parameters of what is and is not permissible, providing useful guidance for employees in relation to what is appropriate in the context of their role. They also allow an employer to maintain some control over their brand and image online.
It is however worth noting that, presently, there are no cases exploring what happens when a former employee makes derogatory comments about a former employer on social media. Although freedom of expression is recognised as a human right, it is imperative that this freedom be balanced with the potential damage to the employer’s reputation. One of the options, defamation litigation, is difficult to pursue and may take years to resolve.
Another option is the inclusion of restrictive covenants in employee contracts. However, the Courts have held that these covenants must be limited in time, thus exposing employers to the same issue. It is arguable that, at present, restrictive covenants in employment contracts have not kept up with modern times and emanate from a time before social media. Prior to the internet, restricting an employee from maliciously speaking out against a former employer was disproportionate when compared to the damage likely to be caused. However, given the instantaneous, widespread damage a derogatory online post may cause, it seems it may be time to re-evaluate what can be covered by restrictive covenants. Whistle-blower protections would still apply, preserving employee rights to speak out in legitimate situations.
What is important is that employers must ensure they keep up to date; social media is an ever-evolving beast and you don’t want to get caught out. However, as much as employers wish to protect their brand and reputation, they cannot reach too far into their employees’ personal lives. The best way to protect themselves is with a clear policy that covers all possible aspects relevant to the employer’s brand and business.
