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Social media is electronic and technological applications designed for online socialising, networking, communicating, publication and advertising purposes. Social media is analogous to an electronic form of “word of mouth” communications. An important difference between a “word of mouth” communication and a “social media broadcast” is the very public and indelible nature of social media.
Social media platforms cover a range of categories, including: social connections and Q & A forums (Facebook, Twitter, Orkut, Quora, Skype, Formspring); art, design and photo sharing (Tumblr, Instagram, Flickr); commentary and popular interest (Reddit, Stumbleupon, Digg); location services and customer reviews (Yelp, Foursquare); blog and personal entertainment (Myspace, WordPress, YouTube, Last.fm); and professional networks (LinkedIn).
Social media platforms commonly involve “user generated content”. The users generate a range of content which, before being broadcast online, must be carefully considered to avoid social media gaffes being thoughtlessly broadcasted. It is vital that social media users understand the risks and opportunities in being able to exploit this evolving electronic media landscape.

What are the pros and cons of social media.

Social media has various advantages and disadvantages.
For businesses, social media platforms are increasingly being used in the recruitment process to screen candidates’ profiles and their broadcasts. A review of a candidates’ social media presence may produce examples of desirable qualities (such as good communication skills, creativity, suitable personality characteristics, professional awards, well selected online friends, or highly developed professional networks). Equally, and more commonly, it may reveal undesirable qualities (such as provocative and/or inappropriate images or statements, disparaging comments about former employers, discriminatory comments, unqualified claims to credentials, excessive online friends or references to alcohol or drug use).
Business can also engage with their customers through social media. For example, international consumer goods behemoth Procter & Gamble effectively used social media platforms in 2010 and 2011 to launch and promote Old Spice and Gillette branded goods. In contrast, Qantas was not as effective in using social media during the grounding of its entire fleet from late October 2011. Despite attempts by Qantas to use social media to pacify and communicate with its customers, social media details customers expressing their disappointment and dissatisfaction. Accordingly, businesses must be aware of the “immediacy” of social media and use it advantageously.
Given the digital footprint that social media broadcasts generate, evidence gathering and investigative authorities find social media platforms a rich resource of material. It is rare that police or other forensic experts, such as insurance or fraud investigators, are unable to retrieve social media profiles and/or contributions through social media forums. Searches of social media platforms may allow for evidence to be cross-checked and discrepancies to be investigated. Courts have even allowed social media to be used for the “service” of court documents in limited circumstances.
For employees, social media platforms need to be handled carefully with the opportunities to use the public forum to promote themselves favourably. The number of cases concerning employees being tripped up by social media is growing. These cases indicate the need for employees to be selective and careful in how they use social media. It is also becoming increasingly necessary for employers to implement an enforceable social media policy to protect the employers’ interests from their employees’ careless use of social media.

What have the courts, tribunals and fair work Australia said about social media and employees?

Decisions by the Courts, Tribunals and Fair Work Australia, regarding employees and social media platforms, determine each case on its merits. However, there are some common points that have been reiterated in the various decisions, both in Australia and overseas.
It is a common view that using social media platforms is similar to broadcasting and/or publishing in the public domain, irrespective of the privacy settings adopted by the social media user. The broadcast is able to be viewed 24 hours a day and is not removed during work hours. This broadcasting is further complicated, if the social media user has included colleagues as the recipients to share in the user generated content.
The intention of the broadcaster is not a paramount consideration and is superseded by the fact that the content can potentially be viewed by an unlimited number of people. Attempts by the social media users to limit or control their broadcasts, by adopting the maximum privacy settings, will not make those users immune from an employment review.
The decisions have drawn a line from, on the one hand an employee having a grumble over a coffee about a work place issue and on the other hand, posting the details of the grumble online to be viewed by an unrestricted number of people, at any time, including colleagues and/or an employer. For employees, the lesson is simple: do not use social media platforms to broadcast or publish unfavourable or inappropriate content about your employer.

Can employees’ misuse of social media be a valid reason to dismiss an employee?

The nexus between employees’ careless use of social media and a potential breach of the employment contract will depend on the circumstances. For example, if the disparaging broadcast has a direct connection with the employer or is directed to a work colleague, or is likely to cause damage to the employers’ interests, then these matters may be actionable by the employer. Social media broadcasts made outside work hours will not necessarily protect the employee from their employers’ scrutiny.

How can employers protect their business against the risks posed by employees’ improper use of social media?

An important and useful step for employers is to have a social media policy that binds employees. An effective social media policy will have some common and essential points, including: a clear definition of social media, a re-statement of the employees’ common law and statutory duties, and an explanation of the public and indelible nature of social media.
In the case of possible breaches, the social media policy must contain particulars of what constitutes a breach and the consequences for breaching the social media policy, including disciplinary matters.  Employers who have enforceable social media policies are in a stronger position to take action against employees who have misused social media resulting in damage to the employers’ interests.

More information

For further information and legal advice regarding social media, please contact Alex Long, Lawyer and Trade Marks Attorney, Henderson & Ball.

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