Social networking navigating the work place minefield
1. SOCIAL NETWORKING
NAVIGATING THE WORK PLACE
MINEFIELD
Paper by Gavin Barnes
DIRECTOR
redchip lawyers Pty Ltd
Prepared for LEGAL WISE
SEMINAR 26 MAY 2011
PHONE: 07 3582 5055
FAX: 07 3852 2559
EMAIL: gavinb@redchip.com.au
WEBSITE: www.redchip.com.au
2. 1
INTRODUCTION
Social networking sites like Facebook, Myspace, Twitter and LinkedIn are
platforms on which people can socialise online, share information and connect
with each other. Users of such sites can build public or semi-public online profiles
and share content with other profiles to which they choose to share a connection.
Online social networking has seen rapid growth in recent years as the internet
and social media applications have become more accessible. Currently Facebook
has over 500 million active users1 and Twitter has over 175 million users2. A
significant number of individuals in Australia and around the world are members
of one or more social networks. Data from the Australian Government
Information Management Office3 indicates the percentage of Australians using
social networking sites increased from 29 per cent in 2008 to 36 per cent in 2009.
Furthermore, a global survey of lawyers4 showed a sharp rise in demand for
online networks designed exclusively for legal professionals. The survey data
revealed that more than 70 per cent of lawyers were members of an online social
network - up nearly 25 per cent on the previous year - with 30 per cent growth
reported among lawyers aged 46 and over.
Psychological Impact of Online Social Networking
The Australian Psychological Society conducted a survey5 investigating patterns in
online social networking and the social and psychological impact attaching to
them. A total of 1834 Australians responded to the survey. Of the young adults
aged 18-30 who completed the survey, 97% were accessing online social
networking sites. While much of the media attention on online social networking
had focused on young people’s use of those sites however, the survey found that
1
Facebook Statistics, <http://www.facebook.com/press/info.php?statistics>.
2
Twitter, <http://twitter.com/about>.
3
The Australian Government Information Management Office, ‘Australians’ use
and satisfaction with e-government services 2009’,
<http://www.finance.gov.au/publications/interacting-with-government-
2009/index.html>.
4
LexisNexis Martindale-Hubbell, ‘Networks for Counsel Study 2009’,
<http://www.leadernetworks.com/documents/Networks_for_Counsel_2009.pdf>.
5
The Australian Psychological Society Ltd, ‘The Social and Psychological Impact of
Online Social Networking’, APS National Psychology Week Survey 2010.
3. 2
81% of adults aged 31 to 50 years also reported using these sites.
A large number of participants (53%) felt that online social networking allowed
them to be in contact with people more regularly, and for 79% of participants it
helped them to keep in touch with people who live far away.
More than half of respondents aged 18-30 felt they would lose contact with many
of their friends if they stopped using online social networking. With the over 50
age group, only 26% was concerned about losing friendships.
When asked if they felt more confident socialising online than in person 54%
responded in the affirmative while 8% indicated that they felt they were treated
better online than in face-to-face relationships.
Past studies have suggested that online social networking may be particularly
helpful for those who are shy and less sociable as it provides an easier way for
them to form connections. This survey found that people using social networking
sites are more likely to be of the type that rate themselves as having moderate
levels of shyness and sociability, suggesting that they are individuals who are
likely to be competent socially.
BUSINESS RISKS
Misleading Conduct
Businesses that utilise social networking sites are responsible for all content
posted on those sites, including material that is posted by third parties and must
exercise control over the misleading material once it is brought to their attention.
6
In ACCC v Allergy Pathway Pty Ltd , the ACCC took court action in 2009
against Allergy Pathway Pty Ltd (Allergy Pathway) for making misleading and
deceptive statements about the ability of Allergy Pathway to identify, treat and
cure allergies. The Federal Court found that misleading and deceptive statements
had been made and ordered Allergy Pathway and its director to give undertakings
not to repeat the misleading and deceptive statements for a period of 3 years.
6
ACCC v Allergy Pathway Pty Ltd [2011] FCA 74.
4. 3
In 2010, ACCC brought another action alleging that Allergy Pathway and its
director breached the undertakings that they gave to the court. The alleged
statements in breach of the undertakings included testimonials and replies on the
company’s website, Facebook page, Twitter account and on Youtube.
The following testimonial was posted on Allergy Pathway’s Facebook wall:
‘Allergy Pathway is amazing. It has worked wonders for me in so many ways. I
had food allergies for as long as I can remember, avoiding seafood and shellfish
and even bread! After one treatment I could eat seafood with no noticeable
reaction … [name], Medical Practitioner’
The court found that a company which maintained a Facebook page was liable for
misleading testimonials posted on that page by users of the company’s products.
In making its finding, the court emphasised that liability for the publication of
misleading, deceptive or defamatory words is not limited to the original author of
the words.
Although Allergy Pathway was not the original author of the client testimonials
posted on its Facebook page, they had knowledge of the posting and they had the
necessary means to remove the posts but took no steps to remove the
testimonials from the social networking sites. Therefore Allergy Pathway had
published the testimonials and acquired responsibility for the material posted by
their customers.
Allergy Pathway and its director were each fined $7,500 for contempt of court.
The court also made orders for corrective advertising to be displayed at all Allergy
Pathway clinics, on Allergy Pathway’s Facebook and Twitter pages and to be
distributed to all of its' clients.
Internet Defamation
In May 2005, each of the States and Territories of Australia agreed to enact
uniform defamation laws which took effect from 1 January 20067. In Queensland,
7
New South Wales (Defamation Act 2005), Victoria (Defamation Act 2005),
Queensland (Defamation Act 2005), South Australia (Defamation Act 2005),
Western Australia (Defamation Act 2005), Tasmania (Defamation Act 2005) and
the Australian Capital Territory (Civil Law (Wrongs) Act 2002 as amended by the
Civil Law (Wrongs) Amendment Act 2006); and Northern Territory (Defamation
Act 2006).
5. 4
the Attorney-General and Minister for Justice, Linda Lavarch, announced in
November 2005 that the Defamation Act 2005 (Qld) was passed in Parliament in
accordance with the proposed uniform national laws8.
There is no statutory definition for defamation. At common law, the tort of
defamation consists of the communication or publication of material that
damages the reputation of another. The publication must be made to a person
other than the person defamed.
"Publication" is the communication of defamatory material of and concerning
another to some person other than the defamed. At common law the tort of
defamation is committed at the place of publication, that is, at the place where
the communication is received.
In the case of internet defamation the tort is committed in the place where the
material is downloaded. It is only when the material is available in
comprehensible form that damage to reputation is done.
In Dow Jones & Company v Gutnick9 the High Court found that publication of
online material occurs at the point when the information is downloaded by end-
users, not at the place of its upload. The court held that ‘in the case of material
on the internet, it is not available in comprehensible form until downloaded onto
the computer of a person who has used a web browser to pull the material from
the web server’10.
Gaudron J stated the publication of material damaging the reputation of the
person defamed is essential and ‘merely creating and making the material is
insufficient. The material has to be accessed or communicated in a jurisdiction
where the person defamed has a reputation’11.
Who can be sued?
Internet users may be sued in relation to material they write/publish themselves,
or if they re-publish/distribute material written by someone else. Internet Service
8
Justice and Attorney-General The Honourable Linda Lavarch, Ministerial Media
Statements, ‘Parliament Passes Landmark Defamation Laws’.
9
Dow Jones & Company v Gutnick (2002) 210 CLR 575.
10
Ibid at 44.
11
Ibid at 151.
6. 5
Providers (ISP) and Internet Content Hosts (ICH) may be sued in relation to
information published by a user on their network or web servers.
In June 2009, a Chicago apartment management company, Horizon Group,
brought a libel suit12 against a former tenant over a comment made on Twitter.
They claimed damages of $50,000 on the basis that the comments were
published throughout the world.
The Tweet posted was as follows: ‘Who said sleeping in a moldy apartment was
bad for you? Horizon realty thinks it’s okay.’
Horizon Group alleged the Tweet was false and defamatory resulting in the
reputation of the company being greatly damaged. Despite this, the proceedings
were dismissed as the judge felt the original Tweet was too vague to meet the
strict definition of libel.
Alternatively, in July 2008, the High Court in the UK ordered Grant Raphael to
pay damages for defamation in relation to a fake Facebook page he created about
Mr Matthew Firsht13. The fake profile included a genuine photo of Mr Firsht and a
mixture of true and false statements about private matters such as his date of
birth, sexual orientation and allegations regarding the ability of Mr Firsht and his
company to pay their debts.
Anonymous posters on the internet
The recent Western Australia Supreme Court case of Moir & Datamotion v
Gladman is an example of a successful defamation case involving a blogger
using a pseudonym. The case confirmed that companies may have grounds to
prosecute people who make anonymous defamatory comments online.
In January 2010, IT company Datamotion Asia Pacific Limited (Datamotion) and
its managing director Mr Ron Moir issued proceedings in relation to defamatory
material published about them on the internet forum HotCopper Australia
(HotCopper).
12
Horizon Group Management v Amanda Bonnen, Circuit Court of Cook County,
Illinois, 2009L008675.
13
Applause Stores Productions Limited & Mathew Firsht v Grant Raphael [2008]
EWHC 1781.
7. 6
A user posted defamatory comments on HotCopper about Datamotion and Mr
Moir. HotCopper refused to reveal the identity of the user due to its privacy and
confidentially policy.
The potential plaintiffs obtained court orders by consent against HotCopper’s
owner which required disclosure of information about the anonymous poster
under a preliminary discovery process.
The defendant Graeme Gladman was eventually found from the information
provided by HotCopper. The defendant agreed to resolve the defamation action
by paying a fine of $30,000, providing apologies and giving undertakings not to
repeat the defamatory publications.
Privacy
The Privacy Act 1988 (Cth)14 imposes information privacy principles (IPPs) on the
federal public sector and on private sector organisations. The IPPs set the
minimum standards for the collection and handling of personal information by
businesses and other private sector organisations.
If a social networking site is based in another country such as the USA,
companies might not have privacy rights under Australian law when using the
site. Also, the Privacy Act does not cover individuals acting in a personal capacity.
Therefore individuals posting information on social networking sites would usually
be exempt from the coverage of the Privacy Act15.
Information on such social networking sites is publicly available and anyone can
look at it including employers. However if an organisation that is covered by the
Privacy Act collects personal information from an individual’s social networking
site, then the organisation must comply with the National Privacy Principles that
set out how an organisation must handle personal information and the purpose
for which it can be used.
14
Privacy Act 1988 (Cth).
15
Australian Government – Office of the Australian Information Commissioner, Your
Privacy Rights FAQs – Do I have rights under the Privacy Act when I use social
networking sites? < http://www.privacy.gov.au/faq/individuals/sn-q3>.
8. 7
The following example is taken from the Australian Government is privacy
website16:
An Australian department store collects your personal details from your Facebook
page so that they can send you information about their latest sale. If the store is
covered by the Privacy Act, they will usually need to tell you who they are, how to
contact them and they can only use your information for the purpose which they
disclose to you.
In the case of Raphael v Firsht17 mentioned above, the High Court held that Mr
Raphael’s actions were also an invasion of privacy. However, there is no cause of
action for invasion of privacy or tort of privacy here in Australia.
Confidential information and customer data base
In the Australian case NP Generations v Feneley18, a rental property manager
kept a diary and address book containing the contact information of some of the
owners of the rental properties which she managed during the course of her
employment. After her employment was terminated, she took the diary with her,
began working for a competitor and made contact with eight clients of her former
employer.
The court held that where confidential information is entrusted to an employee for
a limited purpose, it can only be used for that purpose and no other. It is also a
breach of good faith and a breach of the equitable obligation to preserve the
confidence of an employer if an employee makes a copy of a list of customers of
the employer for use after their employment ends19. The list of names and
addresses were confided to the property manager for a specific and limited use,
namely to enable her to manage the appellant’s rental property business. The
property manager was ordered to deliver the address book to her former
employer.
16
Australian Government – Office of the Australian Information Commissioner, Your
Privacy Rights FAQs, ‘Are Organisations allowed to use the personal information I
post on social networking sites?’, <http://www.privacy.gov.au/faq/individuals/sn-q5>.
17
Applause Stores Productions Limited & Mathew Firsht v Grant Raphael [2008]
EWHC 1781.
18
NP Generations Pty Ltd v Feneley (2001) 52 IPR 563.
19
Ibid at 19.
9. 8
Sites like Linkedln allow employees to upload their email address book into
LinkedIn and invite customers to ‘connect’. It follows that the email address book
uploaded onto LinkedIn may contain the employer’s confidential information in
the form of its customer database.
When the employee leaves the company, the client information is still retained on
LinkedIn. As a result, there could be loss of potential revenue, loss of confidential
client information and the original information may lose the quality of
confidentiality.
In the UK:
In the case of Hays Specialist Recruitment v Ions20, the High Court allowed
pre-action disclosure in relation to a possible claim against a former employee
who had uploaded work contacts to LinkedIn.
Mr Ions was employed by Hays for over 6 years as a ‘middle ranked’ recruitment
consultant. He specialised in placing training and similar personnel for a broad
range of professional, public sector and commercial clients21.
Hays claimed that Mr Ions has used confidential information concerning clients
and contacts copied while still he was still employed by Hays and breached the
restrictive covenants in his contract of employment.
During the course of employment and with the encouragement of his employer,
Hays, Mr Ions became a member of LinkedIn and uploaded information
concerning clients and applicants onto LinkedIn.
The judge considered that Hays had reasonable grounds for a claim against Mr
Ions arising from the fact that he uploaded client data to LinkedIn and the
subsequent use of those details in his competing business. The court said that
even if Hays had allowed the uploading of business contacts, it was likely to be
limited to using the data in the performance of his duties as an employee of Hays.
Mr Ions was ordered to disclose all documents, including invoices and emails,
evidencing his use of the LinkedIn contacts and any business obtained from
them.
20
Hays Specialist (Holdings) Ltd and Another v Ions and Another [2008] EWHC 745.
21
Ibid at 2.
10. 9
In the US:
In March 2010 the matter of TEKsystems v. Hammernick22 was commenced in
the United States District Court for the District of Minnesota. TEKsystems (‘TEK’),
an IT staffing firm alleged that former employees violated the non-competition,
non-solicitation and non-disclosure agreements entered into with TEK by
unlawfully communicating with former clients of TEK via LinkedIn.
The hearing and outcome will be known in August 2011.
The issue involved in this case is that sensitive information could be leaked by
government officials. For example, in the United States, two State Department
officials tweeted about a trip in which they led a trade delegation of Silicon Valley
executives to Syria.
According to a New York Times article23, their Twitter messages "raised heckles"
in the U.S. House of Congress and embarrassed the State Department, which
normally conducts its dealings with Syria--a country still classified by the
Americans as a "state sponsor for terrorism"--behind a veil of polite diplomacy.
The two officials had tweeted about, amongst other things, how they challenged a
Syrian communications minister to a cake-eating contest.
COPYRIGHT ISSUES
Copyright protects the original expression of ideas. Copyright protection in
Australia is free and automatically safeguards original works of art and literature,
music, films, sound recordings, broadcasts and computer programs being copied
and from certain other uses. Copyright owners have exclusive rights to:
• reproduce the work;
• communicate the work to the public (for example, via fax, email,
broadcasting, cable or the internet);
• to perform the work in public; and
• to make an adaptation.
The creator of the work is usually the first owner of copyright but there are
several exceptions. One important exception is that copyright in works created
22
TEKsystems, Inc. v. Hammernick et al., No 0:10-cv-00819.
23
The New York Times,’ Twitter Musings in Syria Elicit Groans in Washington’,
<http://www.nytimes.com/2010/06/30/world/30diplo.html>.
11. 10
during the course of employment are owned by the employer and not the
employee.
Using social media content
Social networking sites allow users to personalise their profile pages by posting
photographs, logos, film clips, songs and quotations. Users of social networking
sites may infringe upon another person’s copyright if they post copyright material
without the permission of the copyright owner.
Facebook v Power Ventures24 is a lawsuit brought by Facebook alleging that
Power.com, a third party platform, collected user information from Facebook and
displayed it on their website. Facebook alleged this constituted infringement of
copyright and also asserted claims of both state and federal trademark
infringement.
Facebook allows third parties like Power.com to create applications that interact
with Facebook’s services through the Facebook Connect application. Third party
access is not permitted unless such access is through Facebook Connect.
Power.com is a website that enables its users to aggregate data about
themselves that is otherwise spread across various social networking sites and
messaging services including LinkedIn, Twitter, Myspace, AOL and Yahoo instant
messaging. Power.com intended and planned to enable users to access Facebook
profile data on the Power.com site.
Facebook and Power.com tried unsuccessfully to negotiate an arrangement
whereby Power.com could access Facebook’s site through the Facebook Connect
application. Facebook alleged that Power.com continued to scrape Facebook’s site
despite technological security measures to block such access.
The court held that Facebook does not have a copyright on user content which is
the information that Power.com sought to extract. However, if Power.com made a
copy of a user’s entire Facebook profile page in order to collect that user content,
such action may violate Facebook’s proprietary rights.
24
Facebook Inc v Power Ventures Inc., 91 U.S.P.Q.2d 1430.
12. 11
Facebook’s user agreement prohibits the downloading, scraping and distributing
of any content on the website, with the exception being that a user may
download his or her own content. However, not even this exception allows a user
to employ data mining, scraping or similar data gathering or extraction methods
as this would constitute unauthorised use.
The utilisation of Power.com by Facebook users exceeds their access rights
pursuant to the Terms of Use. When a Facebook user directs Power.com to access
Facebook, an unauthorised copy of the user’s profile page is created. The creation
of that unauthorised copy through the use of Power.com’s software may
constitute copyright infringement.
Infringement – Employer vicariously liable
Copyright is infringed if copyright material, or a substantial part of it, is used
without permission in one of the ways exclusively reserved to the copyright
owner. Employees may infringe copyright by uploading copyright material on the
company’s social networking site or company blog without first obtaining the
consent of the copyright owner. Employers could be vicariously liable for the
infringement of another person's copyright by their employees if the employee
was acting in the course of their employment.
Fair dealing defences under the Copyright Act 1968 (Cth)25 enable (in some
circumstances) the use of copyright material without the permission of the
copyright owner for one of the following purposes: criticism, review, news
reporting, parody or satire.
Factors that may be taken into account in working out whether a use is ‘fair’
include whether the person using the material is doing so for commercial
purposes and/or whether the work is available for sale. The mere fact that the
person using the material is not making a profit does not make it fair.
Potential reputation damage
One of the risks associated with the use of social media is the loss of reputation
brought about from the disclosure of confidential business or inappropriate
25
s 40, 41, 41A, 42, Copyright Act 1968 (Cth).
13. 12
information. In the 2009 Deloitte survey on ethics and workplace26, 74% of
employees said it is easy to damage a company’s reputation on social media.
In February 2011, a Singapore government staff member accidentally posted a
personal tweet containing an expletive on the government agency’s official
Twitter account27. The tweet said: ‘F*** you, don’t talk to me like that’. It was
taken down within minutes but it had already gone viral with retweets by other
Twitter users. In April 2011, a tweet: ‘omg. F*** you all. Seriously’ was
accidentally sent out on the Twitter account of Singapore’s national newspaper28
to more than 46,000 followers.
At a Domino’s franchise in North Carolina, two employees filmed and later posted
a prank video to Youtube showing unhygienic food preparation practices29. Within
a few days there were more than a million views on Youtube and a viral spread
on Twitter.
PERSONAL RISKS
Discrimination
The Fair Work Act 2009 (Cth) provides that employees and employers can bring
an ‘adverse action’ claim where a ‘workplace right’ has been breached or is
threatened to be breached.
A person has a workplace right if the person:
• has an entitlement under a workplace law or a workplace instrument such as
26
2009 Deloitte LLP Ethics & Workplace Survey,
<http://www.deloitte.com/assets/Dcom-
UnitedStates/Local%20Assets/Documents/us_2009_ethics_workplace_survey_2205
09.pdf>.
27
The Straits Times (Singapore), ‘What’s that *bleep* doing in a govt tweet?’,
<http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_639142.html>
.
28
Singapore Straits Times, ‘Vulgar tweet sent to ST followers by mistake’,<
http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_652162.html>.
29
The Telegraph (UK), ‘Dominos Pizza defends reputation on Twitter after Youtube
video shows employees abusing food’,
<http://www.telegraph.co.uk/news/worldnews/northamerica/usa/5164216/Dominos-
Pizza-defends-reputation-on-Twitter-after-YouTube-video-shows-employees-
abusing-food.html>.
14. 13
an award or enterprise agreement; or
• is able to initiate a proceeding under a workplace law or workplace
instrument; or
• is able to make a complaint or inquiry in relation to their employment.
Section 342 of the Fair Work Act sets out circumstances in which a person takes
adverse action against another person. In the case of an employer against an
employee, adverse action includes dismissing, injuring or discriminating against
an employee.
In the situation of a prospective employer, adverse action is taken when a
prospective employer refuses to employ a prospective employee or discriminates
against a prospective employee on the terms and conditions contained in the
offer of employment.
Section 351 of the Fair Work Act provides that employers are prohibited from
taking adverse action against an employee (or prospective employee) because of
that person’s race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family or carer’s responsibilities, pregnancy, religion,
political opinion, national extraction or social origin.
An employer can only do so when the action is:
• not unlawful under any anti-discrimination law in force in the place where the
action is taken; or
• taken because of the inherent requirements of the particular position
concerned; or
• in accordance with doctrines, tenets, beliefs or teachings of a particular
religion or creed.
Employers can gain access to a variety of personal information of employees
unrelated to their employment duties such as their age, ethnicity, sexual
preferences, religious beliefs or marital status. If an employer relies on this
information to treat an existing or prospective employee unfavourably then they
may have breached the Fair Work Act.
15. 14
Employment – unfair dismissal
In a recent unfair dismissal claim30, Fair Work Australia found that an employer,
Escape Hair Design, unfairly dismissed an employee, Ms Fitzgerald, after she
posted a negative comment about her employer on Facebook.
The Commissioner held that Facebook comments may impact the employer’s
trust and confidence in the employee, even if posted out of work hours. The
factors that were taken into consideration include whether the employer was
named, who could see the comments, how long the comments were posted and if
the comments would adversely affect the hairdressing industry or the employer’s
business specifically.
In this case the Commissioner found that while the comments were frivolous they
did not provide a valid reason for dismissal because the postings were not
detrimental to the business and the employer had not raised the comments with
the employee at the time they were made.
It may also be argued that employers or managers are being discriminatory if
they accept some friend requests and not others. In the US it has been shown
that lawyers cannot be friends of judges on Facebook but they can be members
of their fan pages31.
Cyberbullying
The Workplace Health and Safety Act 1995 (Qld)32 at section 28 states that
employers have the obligation to ensure the health and safety of their employees
in the workplace and that those employees are not exposed to risks to their
health and safety.
30
Miss Sally-Anne Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA
735.
31
The New York Times, ‘For judges on facebook, friendship has limits’,
<http://www.nytimes.com/2009/12/11/us/11judges.html>.
32
Workplace Health and Safety Act 1995 (Qld).
16. 15
The Queensland Government33 states that employers must identify and manage
exposure to the risk of death, injury or illness created by workplace harassment,
including bullying.
Cyberbullying is the use of information and communication technologies to:
support deliberate, repeated and hostile behaviour by an individual or group that
is intended to harm others.
Cyberbullying techniques use modern communication technology to:
(a) send derogatory or threatening messages directly to the victim or
indirectly to others; and
(b) forward personal and confidential communication and/or images of the
victim for others to see; and
(c) to publicly post denigrating messages34.
A survey was conducted of a sample group of 103 randomly selected members of
the Australian Manufacturing Worker’s Union investigating the prevalence and
methods of bullying of males at work. The results showed that 34% of the
respondents were bullied face-to face, and 10.7% were cyberbullied.
The results suggest that negative acts via technology are emerging alongside
those enacted face-to-face in the workplace and may represent the new form of
bullying, though to a much more limited extent.
ACCESS OF WORK – THE POSITIVE ASPECTS
University of Melbourne study
According to a study conducted by Dr Brent Coker from the University of
Melbourne35, surfing the internet for non-work purposes during office hours
increases productivity.
33
Workplace Health and Safety Queensland Department of Justice and Attorney-
General, ‘Bullying and Harassment in Workplaces’, <
http://www.deir.qld.gov.au/workplace/publications/safe/apr10/bullyinginworkplace/ind
ex.htm>.
34
Privitera, C., & Campbell, M.A. (2009) ‘Cyberbullying: The new face of workplace
bullying?’ Cyberpsychology and Behaviour, 12(4), pp. 395-400.
35
University of Melbourne Media Release, ‘Freedom to surf: workers more
productive if allowed to use the internet for
leisure’,<http://uninews.unimelb.edu.au/news/5750/>.
17. 16
Workplace internet leisure browsing or WILB allows workers to rest their mind by
taking a short break leading to a higher total net concentration for a days' work
and. as a result, increases productivity.
In the study of 300 workers, 70% of the people who use the internet at work
engage in WILB. Employees who do surf the Internet for non-work purposes -
within a reasonable limit of less than 20% of their total time in the office - are
more productive by about 9% as against those who do not.
Manpower Survey
In 2010, Manpower Inc. (NYSE:MAN)36 surveyed over 34,000 employers in 35
countries and territories intending to gauge employer attitudes toward the use of
social media in the workplace.
Nearly six out of ten employers identified some benefits associated with social
networking sites including brand building (20%); the fostering of collaboration
and communication (19%); new talent recruitment (15%); candidate assessment
(13%); and professional development of employees (13%).
HOW DO WE MANAGE THE RISKS
Technology Use Policies
More from the Manpower Survey
63% of employers with social media policies in place indicated that these policies
were often effective in helping avoid productivity loss and 33% indicated that it
was effective in helping protect intellectual property and other proprietary
information.
Commonwealth Bank Social Media Policy37
36
Manpower Inc. (NYSE:MAN), ‘Employer Perspective on Social Networking: Global
Key Findings’,
<http://www.manpower.com.cn/resource/SurveyReport/social_networking_key_EN.p
df>.
37
Charis Palmer, ‘CBA’s Facebook Face-off’,
<http://www.businessspectator.com.au/bs.nsf/Article/CBA-Facebook-Twitter-social-
media-pd20110203-DPW35?opendocument>.
18. 17
The Commonwealth Bank recently implemented a social media policy regulating
its employees’ use of social media channels including social networks,
video/photo sharing sites, wikis online forums and any other website that
facilitate the publishing of user generated content.
The policy includes a clause stating that employees should notify their manager if
they become aware of any inappropriate or disparaging content posted by others
including non-employees.
Although this policy does not form part of the Bank’s employment contract,
failure to comply with the policy may result in disciplinary action being taken
against the employee which may ultimately result in their employment being
terminated.
The Bank received much media attention and criticism following the release of its
social media policy. The Finance Sector Union (FSU) met with the Bank to discuss
its concerns with the Bank’s social media policy. The FSU said the policy
misrepresents employees' workplace rights in that it does not acknowledge the
statutory rights of employees under the Fair Work Act 2009 and equal
opportunity legislation.
The Bank has since revised its policy and now employees risk dismissal only in
serious cases.
What should be considered when drafting a policy?
1. Review existing policies to determine if they address the use of social
networking sites by employees.
2. Determine what type of use of social networking is appropriate for the
employer’s business.
3. Determine the reach of the policy.
4. Determine how the employer will monitor employee’s use of social
networking sites at home and at work.
The employer will have difficulty relying upon the policy to sanction an employee
if it is not consistently and uniformly policed and applied.
19. 18
Coca-Cola Company Online Social Media Policy38
Coca-Cola provides a good example of a social media policy. It is only three
pages long and offers common sense guidelines for its employees. These
guidelines include:
1. Transparency in every social media engagement. The company does not
condone manipulating the social media flow by creating fake destinations
and posts designed to mislead followers and control a conversation.
2. Protection of the consumer’s privacy. The company should be
conscientious regarding any Personally Identifiable Information that they
collect, store or use.
3. Respect of copyrights, trademarks, rights of publicity and other third-party
rights in the online social media space including with regard to user-
generated content.
4. Responsibility in the use of technology. They will not associate the
company with any organisations or websites that deploy the use of
excessive tracking software, adware or spyware.
5. Utilization of best practices, listening to the online community and
compliance with applicable regulations to ensure that these online social
media principles remain current and reflect the most up-to-date and
appropriate standards of behaviour.
Coke also outlines “10 principles to guide how online spokespeople should
represent the company” that everyone should duplicate:
1. Be Certified in the Social Media Certification Program.
2. Follow our Code of Business Conduct and all other Company policies.
3. Be mindful that you are representing the Company.
4. Fully disclose your affiliation with the Company.
5. Keep records.
6. When in doubt, do not post.
7. Give credit where credit is due and don’t violate others’ rights.
8. Be responsible to your work.
9. Remember that your local posts can have global significance.
10. Know that the Internet is permanent.
38
Coca-Cola Social Media Principles, <http://www.thecoca-
colacompany.com/socialmedia/>.
20. 19
Block v Not Block
In the 2010 Deloitte ethics and workplace survey39, 40% of executives said their
company does not allow access to online social network sites from the workplace.
According to a newspoll survey40 of more than 800 Australian workers
commissioned by Symantec, 73% of Australian workers are accessing social
networking sites. Of workplaces that did not officially allow workers to look at
social networking sites during work hours the survey returned the result of 48%.
While 24% of these workers access social networking sites during work hours,
just under a third of these do so without approval from their employers.
Many of those surveyed engaged in risky online behaviour with 20% of the
respondents admitting to have posted confidential information on a social
networking site and 25% have accepted friend requests from someone they did
not know.
Companies can use firewalls to limit access of Facebook functions to ‘read-only’.
With a firewall, organisations have greater control over what applications their
employees can access on Facebook and can apply "read-only" Facebook access to
certain staff members.
There is some debate on whether employers should block employee’s access to
social networking sites. In a 2008 survey41, it was found that when given the
choice between two similar jobs where one employer blocked access to social
networking sites and the other did not, 46% would choose the employer that
allowed access to these sites.
According to Facebook42, there are currently more than 250 million active users
accessing Facebook through their mobile devices. People who use Facebook on
their mobile devices are twice as active on Facebook as compared to non-mobile
users.
39
2010 Deloitte LLP Ethics & Workplace Survey,
<http://www.deloitte.com/view/en_US/us/About/Ethics-
Independence/8aa3cb51ed812210VgnVCM100000ba42f00aRCRD.htm>.
40
Symantec Press Release, ‘Australian Workers Embrace Social Networking Despite
Falling Victim to Cybercriminals’,
http://www.symantec.com/en/au/about/news/release/article.jsp?prid=20101209_01.
41
Deacons’ Social Networking Survy 2008.
42
Facebook Statistics, <http://www.facebook.com/press/info.php?statistics>.
21. 20
Therefore it seems that even if employers do implement measures to block
access, the prevalence of smartphones and the easy access of social networking
sites on these devices would make the employer’s efforts ineffectual.
Monitor online reputation
There are Websites like Google Alerts43 and Tweetbeep44 which can assist
companies in monitoring their online reputation. By adding the company name to
such online tools, companies can be alerted when material is posted online in
relation to their company.
Monitoring employee’s use
Researchers from Swinburne University of Technology in Melbourne are working
with software company Mailguard to create a program that not only monitors the
internet use of employees but also calculates the average use for departments
and particular occupations45.
Education and awareness is the key
Businesses should develop a clear social media policy for employees providing
guidelines on safe practices on social networking sites and stating what can and
cannot be posted or shared on social networking sites.
The social media policy should establish clear procedures to follow when a
violation is discovered. It is important that the policy states what the
consequences of violating the policy will be.
Employers should conduct ongoing social media awareness training for employees
to educate and remind them about internet safety, security and threats on social
networking sites.
Employees should also be given a hard-copy of the company’s social media policy
to sign, acknowledging that they have read and accepted the policy.
43
Google Alert, http://www.google.com/alerts.
44
Tweetbeep, http://tweetbeep.com/.
45
The Age, ‘Bosses switch on antisocial network’,<
http://www.theage.com.au/executive-style/management/bosses-switch-on-
antisocial-network-20110302-1bdv6.html>.
