Social media: the pitfalls of employees using social media

Social media poses legal and practical pitfalls for employers, say Susan Snedden and Alan Delaney.

Disputes over ownership of profiles on social networking sites are becoming a regular occurrence. Laura Kuenssberg, the BBC's former chief political correspondent, amassed 60,000 followers on Twitter while using the alias @BBCLauraK. When she got a new job as business editor at ITV, discussion followed on whether she should transfer the account or "freeze" it on her departure from the BBC.

An amicable resolution was reached, allowing her to transfer the account and, therefore, her followers, to @ITVLauraK. It is unlikely that all employers would have been so accommodating. If she had been maintaining and updating the Twitter account as part of her employment duties and during work time, her employer may have had grounds to argue that they had rights in, and to, the account. Indeed, the Twitter account may have generated goodwill for the company and, as such, been a significant asset worthy of protection.

The proliferation of social media is blurring the traditional boundaries of work and play. While Facebook and Twitter may have started out as platforms aimed at individuals, it did not take long before organisations also recognised their farreaching potential as useful tools for businesses. Today, few organisations can lay claim to being a social-media-free zone, as employers and staff embrace the plethora of tools on offer to engage with the wider community.

Establishing ground rules

But this new landscape has created its own set of challenges. A growing number of employers are grappling with these challenges as they attempt to define a framework that recognises the importance of such tools to the business, while managing risk and misuse of social media. So what can be done to address these issues?

The terms of service of individual social media platforms will often provide at least part of the answer to ownership issues. Ownership of a user account on LinkedIn, for example, remains at all times with the employee, as long as it is in the employee's own name. An employer cannot, therefore, force the employee to transfer their account or disclose their username and password.

However, the information contained within the account may be a different matter. In 2008, the High Court ordered a former Hays Specialist Recruitment employee to disclose business contacts added to his LinkedIn social networking site account before leaving the company after concluding that an alleged breach of confidential information had taken place.

In a US case, mobile phone news site PhoneDog is in dispute with former employee Noah Kravitz. The former member of staff was provided with a Twitter account by the company (@PhoneDog_ Kravitz), which he used to provide updates on company products and services. By the time he resigned and changed the alias to @noahkravitz, the account had 17,000 followers. He continued to tweet and, with nearly 25,000 followers, is now facing claims for misappropriation of trade secrets, among other things.

Any organisation that encourages the use of professional networking sites must be clear, from the outset, as to what its expectations are in respect of contacts made. If these are to be viewed as confidential information, which ought to be deleted from an online profile on termination of employment, it needs to be made clear in the contract of employment and restrictive covenants should be tailored accordingly. Of course, the difficulty is that contact lists on LinkedIn are not secret and can be viewed by other contacts of the person in question.

Policies on account use

While ownership of an account and the contacts made via that account are one thing, the use of the account is another. In the 2011 case of Crisp v Apple Retail (UK) Ltd, Mr Crisp posted derogatory comments about his employer, Apple Retail, on his own Facebook page. He probably had not expected a colleague to print them off and show them to the store manager. His dismissal was found to be fair, as Apple had communicated a clear social media policy from the induction stage onwards, which stated explicitly that commentary on Apple products and critical remarks about the brand were prohibited. Reinforcing this decision, in Preece v JD Wetherspoons plc (2011) an employee who was dismissed for having made rude and abusive comments about two customers was also unsuccessful in an unfair dismissal claim for similar reasons.

As employment tribunals must take account of human rights arguments when considering a claim, an employee dismissed for social media use, or misuse, will often argue their rights to respect for private and family life, and to freedom of expression, have been infringed. Mr Crisp tried unsuccessfully to make this argument. His attempt to rely on the right to a private life fell by the wayside, as his comments could be copied and passed on by any of his friends. Apple was also able to argue successfully that its need to protect its commercial reputation meant it was justified and proportionate to limit Mr Crisp's right to freedom of expression. Setting parameters within policies is, therefore, a sensible step to take.

Damage limitation

While those looking to cultivate their organisation's reputation may increasingly turn to social networking sites for assistance, there are others that perhaps wish they had steered clear. Honda deployed Facebook for the launch of a new model. Unfortunately, the public did not take to the car and many wall comments were offensive. The plan to create positive brand buzz had backfired. This was only exacerbated when a Mr Eddie Okubo posted flattering comments about how he would "get this car in a heartbeat"; however, Facebook users found Mr Okubo's LinkedIn profile identifying him as Honda's manager of product planning. Any social media brand campaign must be managed to either combat, or positively harness, the potential of the social network, with all employees briefed on the implications of their actions during the course of such a campaign.

Employers looking to challenge an employee's social media mutterings by means of disciplinary action must ensure that policy foundations are sound. Any decision to dismiss will also need to fall within a band of reasonable responses. In a case where footage of dubious behaviour behind the scenes in an unidentified supermarket had been uploaded to YouTube, it had received only eight hits (including three from the supermarket's management). As no complaints had been received by the supermarket, the action to dismiss the employee for bringing the employer into disrepute was found to be unfair. A fair assessment of the impact of any such conduct on a business, therefore, has to take place. An employer cannot simply assume damage has taken place because it does not like what it reads or sees.

Proactive employers will be far better placed to manage the challenges presented by a networked workforce. Boundaries should be set, communicated and enforced, with employment and intellectual property issues considered side by side. In this way, a seamless message, resulting in reputation enhancement, will be delivered.

Susan Snedden and Alan Delaney are associates in the IP & technology and employment teams respectively at Maclay Murray & Spens LLP.