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Australia – “Tweetering On The Edge”: Balancing Liberty And Restraint.

25 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

The nature of social media is such that private comments and actions of employees that may once have remained private are now readily accessible by employers and the public.

 

Courts and tribunals have generally sought to limit the ability of employers to regulate the “out of hours” conduct of employees by requiring a sufficient connection between the conduct and the employment. The pressing question for employers is just how far an employer may go in seeking to impose obligations in respect of an employee’s “private” or “out of hours” use of social media, and how strong the connection must be between the employee’s conduct and his or her employment.


Some decisions of the Fair Work Commission have likened the use of social media to a conversation between friends at a pub, although conducted in an electronic format. However, comments made on social media can be distinguished from such conversations. In particular:


  • in many cases, a person posting content on social media can be personally identified, even where the person posts content under an alias or anonymously;
  • often the person can also be readily identified as being an employee of a particular employer, whether by content posted by the employee or other people;
  • in many cases, content posted to social media is available to the world at large and can be very quickly disseminated to large numbers of people via social and traditional media, including people unknown to the original author and without that person’s knowledge; and
  • there is generally a permanent record of the content, even in circumstances where the author deletes the original post.

 

When Will An Employee’s Conduct On Social Media Be In Connection With His Or Her Employment?


The duties owed by an employee to an employer have not changed with the advent of social media. The duties owed by employees to their employers include a duty of fidelity and a duty not to disclose confidential information of the employer. These duties will often underpin employer social media policies. While it is clear that employers may regulate the use of social media by employees in the workplace, and may regulate the use of social media on devices provided by the employer, courts and tribunals have generally been reluctant to permit employers to regulate employees’ out of hours conduct. However, circumstances in which it is likely that a court or tribunal will accept that an employer can regulate an employee’s behaviour outside of work include where the behaviour:

 

  • is likely to cause serious damage to the relationship between the employer and employee or damage the employer’s interests; or

 

  • is otherwise incompatible with the employee’s duties as an employee.

 

The issue of whether there is a sufficient connection between an employee’s comments on social media and his or her employment is contentious. The once reasonably clear distinction between an employee’s personal and work life is becoming increasingly blurred. Employers are increasingly seeking to restrict or regulate conduct once perceived to be in the domain of an employee’s private life.

 

In most of the cases decided by the Fair Work Commission, there has been a reasonably clear connection between the employee’s comments on social media and his or her employment (for example, employees posting offensive material about colleagues, their workplace or the policies of their employer).

 

As the growth of social media continues, employers may go further. They may seek to regulate out of hours conduct of employees which may not be as clearly connected to their employment, but may be viewed as offensive or embarrassing and may negatively impact upon an employer’s reputation or business because of its publication on social media.

 

Where To From Here?


The strength of the connection between an employee’s conduct and his or her employment is likely to come under further scrutiny by the courts and tribunals. It is questionable whether a court or tribunal would find that the requisite connection exists in cases where the connection is merely being able to be identified as an employee of a particular employer. However, even this may be a sufficient connection in some cases. Examples include where a senior or high profile employee whose duties involve preserving or promoting an employer’s objectives and reputation posts personal opinions or other content which undermines the employee’s capacity to perform those duties. 


In practice, there needs to be a balance between an employee’s ability to express personal views and opinions online, and the employer’s legitimate interest in preserving  its reputation and business. Both employers and employees have a role in striking the appropriate balance:


  • employers – in only seeking to restrict an employee’s social media conduct to the extent necessary to protect the employer’s legitimate interests; and
  •  employees – in recognising that information posted online can adversely impact their employer’s interests and taking care not to post content which could contravene their duties to their employer.

 

Exactly where this balance lies could evolve to reflect changing uses of, and community expectations about, social media. Accordingly, employers should ensure that their social media policies recognise and are responsive to the changing realities of society.


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For further information, please contact:

 

Jon Lovell, Ashurst

jon.lovell@ashurst.com

 

Peter McNulty, Ashurst

peter.mcnulty@ashurst.com

 

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