Legal Implications of Social Media and the Workforce

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WongPartnership LLP (UEN: T08LL0003B) is a limited liability law partnership registered in Singapore under the Limited Liability Partnerships Act (Chapter 163A).

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Legal Implications of Social Media and the Workforce

Jenny TsinJoint Head, Employment Practice

19 October 2011

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• "Social Media":– A class of digital applications such as Facebook, LinkedIn,

Twitter and instant messaging– Enables and facilitates mass and rapid dissemination of

information

Introduction: A Whole New World

This presentation is for general information only and does not constitute legal advice. Please seek specific legal advice before acting on the contents set out herein. 2

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• What we will discuss:– Legal issues that may arise when engaging in the use of

social media– Suggested manner to mitigate the risks posed

Introduction: A whole new world


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• Legal Issues that may arise when engaging in the use of social media:– Promoting one's services:

• Use of "fan pages"? • Dealing with negative feedback.

– Keeping tabs on employees: • Violation of privacy? • Employee misconduct?

– Ownership over social media networking contacts: • Can you make the employee surrender his LinkedIn network of

contacts post termination?

Introduction: A whole new world


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Use of "Fan Pages"

• Fan pages on Facebook:– Facebook currently has over 300 million active users.– Clearly, a wealth of opportunities for companies, both big

and small, to reach out, engage and interact with the public, disseminate information almost instantaneously, increase exposure and advertise their businesses.

– Many companies have utilised "Fan pages". This includes new/small businesses to large MNCs.


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• Changi Airport's YouTube "fan" channel

Use of "Fan Pages"


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• Coca-Cola's Facebook page

Use of "Fan Pages"


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Use of "Fan Pages"

• Coca-Cola's interactive Conversations blog


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Use of "Fan Pages"

• Faro Technology Asia Pacific's Twitter page:


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Use of "Fan Pages"

• Anti-fan pages:– Flipside of social media usage. – Whilst supporters may set up fan pages, others may do the

opposite by setting up anti-fan pages to garner support or organize "hate" campaigns:

• Examples:– California Fitness Singapore: "Return me my California Fitness

Infinity Membership" anti-fan Facebook page.– Tiger Airways: "What I hate about Tiger Airways" Facebook "hate"

page


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• So, what legal recourse does a Company have when:– Malicious or negative comments are made? – Untruths or misrepresentations are stated?

• Tort of Defamation?• Tort of Malicious Falsehood?

Use of "Fan Pages"


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• Social Media can be useful for keeping your ear to the ground on what the employees are saying.

• Be mindful of the legal risks, including:– Accessing "off limits information"

• invasion of privacy?

– Making wrongful firing decisions based on what you have read/seen

• blurring of lines between private & public

Keeping Tabs on Employees


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• Social Media can be useful for keeping your ear to the ground on what the employees are saying.

• Be mindful of the legal risks, including:– Employers must ensure not only that there is adequate protection

for all employees while at work, but also that employees (or contractors and their employees) are protected against inappropriate conduct after hours by another employee or a contractor's employee which could adversely effect them outside working hours and lead to a serious infection of the workplace when the employee returns to work.

– The insulation must also work in reverse so that an employee at work is protected from another employee who may not be physically present at the workplace.



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• We will discuss several possible / common scenarios :– Employer / Customer bashing.– Cyber harassment / complaints of fellow employees. – Inappropriate "off duty" conduct.– Online breaches of confidentiality.



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• Employer / Customer Bashing – Potentially, this could be employee misconduct entitling

summary dismissal. – Before firing the employee, go through this check-list:

• Assess the severity of the statements made. • What does the employment agreement say about the specific

conduct?• Do you have a social media policy? Has it been breached? • Is a disciplinary process contractually required?



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• Employer / Customer Bashing – Case Studies:

Case Study 1: Alberta v Alberta Union of Provincial Employees of Alberta– Employee who posted comments on her personal blog mocking her

supervisors and co-workers and attacked management was terminated.

– Used aliases but the employees were easily able to identify the individuals described in her blog.

– Furthermore, she worked for a department in the Alberta government which handled sensitive information

– Termination upheld on the basis of the blog's destructive impact on the employment relationship.



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Case Study 2 – Lougheed Imports Ltd– 2 employees from Lougheed Imports Ltd made derogatory

comments on Facebook about their employer and insulted their supervisors and managers.

– Termination upheld by the British Columbia Labour Relations Board which found that the 2 employees had 100 and 377 Facebook friends respectively which included co-workers, former employees and their superior.

– Employees' comments were treated as though they had been made in the workplace.



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Case Study 3 – Farm Boy Grocery Chain– At least 7 employees from Canadian grocery chain Farm Boy were

fired for making derogatory comments about the company and its customers on a Facebook forum.

– Fired for making verbal attacks against customers and staff and breaching the company's code of ethics.



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• Cyber Harassment:– In the traditional context, an employer may be liable to an

employee if the workplace environment was such as to give rise to harassment:

• Waters v Commissioner of Policy Metropolis [2000] IRLR 720: – An employer may be liable in negligence and vicariously liable for

his employees' harassment against a co-worker if he knew that the acts being done, or that might forseeably be done, to the employee by her co-workers might cause her physical or mental harm and did nothing to protect her against such acts.



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• Cyber Harassment:– In the traditional context, an employer may be liable to an

employee if the workplace environment was such as to give rise to harassment:

• Workplace Safety and Health Act ("WSHA"): – Covers all workplaces.

– Employers must, as far as reasonable practicable, protect the safety and health of employees or workers working under their direct control, as well as all who may be affected by their work.



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• Cyber Harassment:- Workplace Safety and Health Act ("WSHA"):

• Specific responsibilities include:– conducting risk assessments to remove or control risks to workers

at the workplace and maintaining safe work facilities and arrangements for the workers at work

• The WSHA may be wider enough to cover psychiatric harm / harassment.



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• Cyber Harassment:– How does that translate in the cyber-world?

- Concept of "workplace" or "working environment" becomes more fluid and difficult for courts to grapple with.

- The employer's obligation to provide a safe work environment free from discrimination, harassment, victimisation and bullyingpotentially extends to Internet and email usage by staff.



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• Cyber Harassment:- Tort of harassment potentially applicable to employees who

are victims of cyber harassment or bullying. - Employers should have appropriate policies and procedures

in place to regulate and monitor Internet and email usage. Continuing training and supervision of employees is also critical to avoid liability or prosecution under occupational health and safety and other laws.



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• Inappropriate "off-duty" conduct:

"A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see… It would be foolish for employees to think they may say as they wish on their Facebook page with total immunity from any consequences".

Commissioner Bissett in Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA 735



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• Inappropriate "off-duty" conduct:- Case Studies

Case Study 1: Gay Chao Hui– Teacher at Tampines Junior College ("Gay") posted comments insulting

Singaporeans on Facebook using his wife's Facebook account

– Gay's wife, a clerk at the National Heart Centre ("NHC"), was investigated by the NHC which took disciplinary action against her.

– MOE spokesperson:• MOE "takes a serious view of Gay's reported actions and statements on the

Internet" and will "look into the matter" and take "appropriate disciplinary action".


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Case Study 2: Alex Chang– SingTel employee.

– Posted insensitive, inflammatory remarks on McDonald's Facebook page.

– Prompted McDonald's to clarify in a written statement emphasizing that it respects all races, and that the prayer call is not part of the company's initiative, as they have a standard list of music and radio stations the restaurants are supposed to be using.

– Removed inappropriate comments from the thread.

– SingTel also released a statement on its Facebook page:• "SingTel is an "equal opportunity employer" and has a diverse and multicultural

workforce… "disappointed that an employee recently posted comments that wereseen to be inappropriate and is counselling him"".


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Case Study 3: O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys

– A disgruntled employee was angry at not being paid his commissions and posted disparaging and vulgar comments about his employer on hisFacebook page from his computer outside of work hours.

– Employee was fired.

– Employee argued that nowhere on his Facebook page was his employer's name mentioned and that only a select group of 70 people had access to comments posted by him.


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Case Study 3: O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys (cont)

- His employer gave evidence that approximately 40% of his staff were female and that use of the word 'c***s' amounted to harassment and a threat to his female staff.

– The tribunal found that the employee's actions:• "amounted to serious misconduct and that it was difficult to accept that [he] was

unaware of the consequences of his actions".

• Furthermore, his employer had an employee handbook.

– Fact that the comments were posted out of work hours from his home computer did not make a difference.


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• Online breaches of confidentiality:– Action against Employee: Breach of employment contract:

• Express duty of confidentiality; or • Implied duty of confidentiality; or

• Disciplinary action / suspension / termination of employment



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• Online breaches of confidentiality:– In order to make out a claim for breach of confidence, the

Company will need to show the following elements: • That the information was of a confidential nature (i.e., must not

be something which is public property and public knowledge);• That the information has been communicated in circumstances

importing an obligation of confidence; and• That there has been an unauthorised use of the information to

the detriment of the party who originally communicated it:– (X Pte Ltd v CDE [1992] 2 SLR(R) 575; QB Net Co Ltd v Earnson

Management (S) Pte Ltd [2007] 1 SLR(R) 1).


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• Online breaches of confidentiality:– Employer's liability:

• Conversely, an employee's unauthorised disclosure of the Company's confidential information may result in the employer being found vicariously liable for the employee's breach of confidence

• Alternatively, an employer might be liable for breach of confidentiality under contracts with third parties:

– where there is a contractual provision imposing an obligation ofconfidentiality on the employer and its employees, the employer would be liable for breach of contract.



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• Online breaches of confidentiality:– No general law governing data protection– Patchwork of sector-specific legislation in place– Self-regulation in the private sector under a voluntary Model

Data Protection Code for the Private Sector ("Model Code")– Proposed framework for data protection is currently

undergoing public consultation and is likely to be introduced by 2012:

• Will regulate the collection, use, disclosure, transfer and security of personal data



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• Online breaches of confidentiality:– Proposed framework for data protection is currently

undergoing public consultation and is likely to be introduced by 2012:

• Companies will be required to inform consumers of the purposes for which their personal information will be used or disclosed.

• Consent necessary before the company may collect such information.

• Potential impact on employers' confidentiality obligations.



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• Information collated by an employee on LinkedIn is a potentially valuable asset which may be used to compete against the employer after the employment relationship has ended.

• Question of ownership may be disputed, especially after the employee has left employment.

Ownership over information on social network


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• Under the common law, information / database made by an employee in the course of employment is the property of his employer, subject to any express agreement to the contrary.



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• Courts have held that lists of email addresses contained in an employer's email system are databases that belong to the employer.

• Remains to be seen whether LinkedIn contacts held on a third party server and not backed up by the employer would be considered as such. If not, then an employee would potentially be able to retain the LinkedIn contacts for his own benefit on termination of employment.



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Disclaimers and terms of use •For employer-led social media initiatives such as the company's forum thread, official Facebook page:

– insert a disclaimer that while every effort is made to monitor the webpage the company takes no responsibility for any comment made by third parties.

Managing the risks of social media engagement


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• Disclaimer can help guard or limit exposure to potential liabilities.

• Encourage employees, if mentioning the company's name, to use a disclaimer that the opinions expressed are their alone and not of the company's.

• Have a properly drafted terms of use / copyright policy in all social media sites.



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Sample clause:

Although the Company may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards, and the like on the Site, the Company is under no obligation to do so and assumes no responsibility or liability arising from the content of any such locations nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such locations on the Site. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. The Company will fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity of anyone posting any such information or materials.

The Company has not reviewed any or all of the sites linked to the Site and is not responsible for the content of any off-site pages or any other sites linked to the Site. Your linking to the Site, off-site pages or other sites is at your own risk.



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Web administrator•Monitor the Company's social media channels and other networking sites where the Company is mentioned.•Respond swiftly and appropriately to reduce the Company's potential liability and fulfill its duty of care towards employees.



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Employment contracts•Properly-drafted employment contract which sets out clearly the scope of unacceptable conduct by the employee and include off-work behavior. •Set out clearly the consequences of breach and non-compliance of the employment contract.

– E.g.: warnings that violation of the policy may result in disciplinary action, up to and including termination of employment.


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• Unambiguous employment contract provides clear basis for employer action against employees.– E.g.: warnings, disciplinary action and even termination.

• Employers can deal with employees more effectively and with greater degree of certainty.– E.g.: Virgin Atlantic employees and O'Keefe v Williams

Muir's Pty Ltd T/A Troy Williams The Good Guys



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Confidentiality clause•Express confidentiality clause or restraint of trade clause clearly defining the nature and classes of information to be protected as confidential information, thereby reducing opportunities for dispute.



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Sample clause: • The employee is aware that in the course of employment with the Company he will gain

knowledge, have access to and become entrusted with information in respect of the Company's business and/or its customers and transactions, dealings or affairs all of which are or may be confidential. The employee, therefore, undertakes that he shall not during his employment or after its termination divulge, disclose, communicate, allow access to or public to any person or otherwise make use of any trade secret/secret manufacturing process, confidential information, documents or records which he may receive or obtain in the course of his employment except to the extent required for the proper and reasonable performance of his duties in the course of his employment.

• All notes and memoranda of any trade secrets / secret manufacturing process or confidential information concerning the business of the Company or any of its suppliers, agents, distributors or customers which shall be acquired by or made by the employee during the course of his employment with the Company shall be the property of the Company and shall be surrendered by the employee to someone duly authorised by the Company upon termination of his employment.

• Social networking discussions conducted, whether during or after working hours, should not disclose confidential proprietary or business information belonging to the employer, its customers, clients, nor disclose private information (including photographs) of co-workers.

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Social media policy•Employees should be kept informed about the legal and security risks involved in social networking. •Guidelines defining what is and is not considered "acceptable use" both on the company's network and outside of it.•Company's policy should not only cover the material on the company blog, Facebook or Twitter account etc, but should cover the appropriate use of the employees'personal blog and any other social networking accounts.



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• Policy should not be restricted to use from work computers and applies to use of social media on employee time. Clear statements that other employee policies and their existing obligations apply to all communications, including those made on social networking sites, whether such communications are posted during personal time at work, or at home.



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• Clear prohibitions against the posting of comments that are defamatory to the employer, other employees, or customers.

• Set out clearly the consequences of breach and non-compliance of the policy. – E.g.: warnings that violation of the policy may result in

disciplinary action, up to and including termination of employment.


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• Ensure employees are aware of the Company's social media policy– Written policy.– Have employees sign off on it or track acceptance or receipt

to ensure they have read its contents.– Policy should be simple and accessible.– Circulate the policy regularly and have the policy readily

available both electronically and in hard copy.



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– Revisit its social media policies from time to time.– Enforcement of the policy should be clear to all employees;

clarify what disciplinary action will be taken if not followed.– Employ a web administrator, software programs or training

IT personnel to monitor and enforce the policy.



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• As social media becomes increasingly all-pervasive in both employer and employees' daily lives, digital privacy is a reality now, and the law and business compliance need to catch up quickly.

Conclusion


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Thank You

Jenny TsinJoint Head – Employment Practice

Direct: +65 6416 8110 Fax: +65 6532 5722Email: [email protected]


Legal Implications of Social Media and the Workforce

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