By Punam Tiwari
The security issues of social media use in the workplace has been written about extensively, and yet it still enjoys as relevant a place in the work context now as it did previously. We all work longer hours these days in comparison to our parents’ generations, and it strikes me that we as individuals merge more and more the boundaries of our professional and personal lives. For example, over this Christmas period, one of my own relatives was operating his work BlackBerry from a beach in Dubai.
I would argue that businesses, and the law, have a lot of catching up if they are going to attempt to control the increasing workplace disputes that often arise from ill-defined social media policies. I believe the following case illustrates my point very well.
The case of Teggart v TeleTech UK Limited (2012), a case in the Northern Ireland Industrial Tribunal, the claimant, in his free time and from his home computer, made unfavourable comments about the sexual promiscuity of a work colleague. That colleague was excluded from the ensuing Facebook discussion, but became aware of it. A complaint by the colleague’s friend to the respondent led to suspension and disciplinary proceedings. In the course of the disciplinary meeting, the claimant defended himself by claiming that his posts were in his free time, and he could make these comments if he pleased; he did not intend to offend; and he did not consider the comments to be bullying or harassment. He also denied bringing the company into disrepute.
Teggart was dismissed, a decision upheld on appeal. At the appeal hearing, Teggart contended that his rights under Articles 8, 9 and 10 of the European Convention on Human Rights (Convention) had been violated. He relied upon Article 8, as the comments had been made in his own time and his rights had been violated by the investigation into his correspondence; Article 9, as he had had his beliefs violated; and Article 10, as he was entitled to freedom of expression.
Convention Principles
The tribunal considered the applicable law and found as follows:
- “Article 8: When the claimant put his comments on his Facebook pages, to which members of the public could have access, he abandoned any right to consider his comments as being private and therefore he cannot seek to rely on Art 8 to protect his right to make those comments.
- Article 9: The tribunal is satisfied that the “belief” referred to in Art 9 does not extend to a comment about the promiscuity of another person. In the tribunal’s view, belief, in keeping with the remainder of Art 9, is intended to refer to a philosophy, set of values, principles, or mores to which an individual gives his intellectual assent or which guides his conduct or behaviour. “The limits to this concept lie in a requirement of a serious ideology, having some cogency and cohesion…”
- Article 10: The right to freedom of expression, as set out in Art 10, brings with it the responsibility to exercise that right in a way that is necessary for the protection of the reputation and rights of others. The right of freedom of expression does not entitle the claimant to make comments which damage the reputation or infringe the rights of A. The claimant does not assert that A was promiscuous, but states that his comments were a joke or done for fun. A’s reputation has been harmed on the basis of a joke or fun. Furthermore A has the right not to suffer harassment.”
With regard to Article 8, the tribunal decided that the act of placing comments into the public domain, even though a limited group were privy to those comments, prevented Teggart from being able to rely on a reasonable expectation of privacy.
My own view is that this may end up being classified as one of those controversial decisions, as the UK's Information Commissioner recently produced an Employment Practices Code which states that employees have a reasonable expectation that personal information, such as this, is private. The victim of Teggart was not privy to the discussions about her, but found out about them.
The tribunal’s decision in relation to Article 10 is also of interest.
In Preece v JD Wethersoons plc ET/2104806/10, a pub manager was dismissed for writing derogatory comments about abusive customers after a torrent of verbal abuse and physical threats from the customers. The claimant’s belief that her comments were private, owing to her mistaken belief over her Facebook privacy settings, was irrelevant. The policy of the employer expressly dealt with the use of social media. The tribunal found that the claimant’s actions, whatever her belief about the privacy of the communications or otherwise, were in the public domain. Under Article 10 the claimant has the right to freedom of expression, but the tribunal took the view that the respondent’s action had been justified under Article 10(2), in view of the risk of damage to its reputation, because it was clear from the communications, when read as a whole, that the claimant was discussing work and the customers. So clearly, and as I have already stated in previous publications, the industry that the employer specializes in is key when the Tribunal comes to make its decisions.
With Teggart I feel that the facts show the tensions in the law arising out of social media usage. Employers really need to ensure that they have a clear and up-to-date policy covering social media usage and what can and cannot be used against them in disciplinary hearings. Given the rise in the use of social media and the risks of cyberbullying, staff training is essential. There is also the risk that an employer could be found to be vicariously liable for harassment or bullying committed by an employee against another employee, which could be costly and cause vast reputational damage.
There are a number of principles that can ensure that employers are not stung in by the onslaught of social media:
- Postings on personal social media sites in free time from personal equipment are not generally covered by a reasonable expectation of privacy and Article 8 arguments in this regard will rarely succeed.
- However, this will apply only where a complaint has been made; a trawl of social media for disciplinary purposes will fall foul of Article 8, unless there is a very clear policy in place.
- A failure to bring to the attention of an employer such material when a complaint has been made will be very dangerous for an employee.
- Article 10 freedom of expression defenses are not likely to succeed when personal comments are made against an individual; but general expressions of view, however offensive, will be protected to an extent.
- A company is not likely to be brought into disrepute by personal expressions of view, especially if the audience is small and exclusive.
- Companies are responsible for the content of their social media feeds, even where postings are by disgruntled employees.
- An employer may be vicariously liable for campaigns of harassment, even in personal time, if it knows or ought to have known that such a campaign is being waged against an employee by a colleague.
It remains to be seen which, if any, of these principles will be adopted, but I suggest that employers assume that they all may be, and act accordingly, by way of best practice.
Punam Tiwari is IRM’s Legal Counsel. She is an eight-year qualified lawyer and focuses primarily on commercial practice areas. Having worked previously in private practice, Tiwari now specializes in technology and commercial law, and helps many of IRM’s clients manage their risks from a legal standpoint by presenting interactive seminars, running an ‘Information Security and the Law’ training course and reviewing key information security contracts.