Australia: Social media and the workplace: Avoiding the pitfalls and enjoying the benefits

Last Updated: 8 November 2011
Article by Britta Hinzpeter and Arthur Cheuk

Facebook, Twitter, LinkedIn and YouTube – for tens of millions of people around the globe, these and other popular social media services have become a vital part of daily life. Depending on their social media prowess, some of your employees may be spending a signifcant portion of each work day updating their facebook status or 'tweeting' about every facet of their lives. Such is the magnitude of this cultural phenomenon that, nowadays, communication through social media occurs both outside and inside the business environment. According to recent surveys, over 20% of employees visit social networking sites at least fve times a week. further, more and more organisations are making use of social networking sites for recruiting, marketing, customer relations or even internal communication purposes. In short, personal and business communications have become increasingly intermingled in the virtual world.

TAKING THE GOOD WITH THE BAD

The speed, cost-effciency, worldwide coverage and sheer popularity of social media platforms potentially spell operational effciency and enormous marketing exposure. The possible benefts do not escape the eyes of organisations. many organisations already permit and often even encourage employees to use social media for work purposes. however, while social media is an exciting vehicle to run businesses, the benefts do not come without costs, and organisations must ensure that the opportunities arising from these relatively new communication tools are not paid for their expense.

One obvious cost of integrating social communication vehicles into an organisation's operations is decreased work productivity. however, there are less apparent risks that also need to be mitigated. one such cost is the data sharing, a user-centric ethos inherent in web 2.0 environments. To that end, impulsive, ill-advised or discriminatory content made public for immediate and perpetual consumption is not only one of the biggest risks of web 2.0, in general, but also a cause of severe legal liabilities for employers. ultimately, it is up to the employer to control their employees' degree of participation in social media. companies should therefore implement effective measures in order to avoid lawsuits, defamation claims, privacy violations or disclosure of trade secrets.

ORGANISE YOUR WORKFORCE

A clear and reliable social media policy is an effective legal tool. Those organisations that already have an electronic use policy in place may easily amend their existing policy according to specifc needs arising from the use of social media at the workplace.

Organisations that do not yet have relevant policies in place are well advised to craft and implement suitable guidelines.

The details in these policies are industry- specifc and must be tailored according to the employer's individual needs and requirements. The more liberal a company is in terms of social media use, the more open the policy should be. In the event employees are encouraged to use social web accounts on the job, it is strongly recommended that the policy provides clear guidance and boundaries as to statements published on behalf of the company. however, there are some general guidelines.

LABOUR LAW ASPECTS

While aiming at the best protection for the employer, a social media policy also needs to be balanced against the interests of the employee. from a labour law perspective, the employer is only entitled to restrict the employee's use of social media in the context of their employment. This clearly includes the authority to issue instructions with regards to access during work hours and content posted on behalf of the employee. statements the employee makes in his/her private life may only be subject to the employer's authority in a case where they are work-related and violate the employee's loyalty obligations (for example, an illicit facebook post about working conditions or a supervisor).

LOCAL LAW COMPLIANCE

In certain Asian countries, allowing your employees to access social media websites is not as harmless as it may seem. In china, popular social media sites such as Facebook, Twitter and youTube are blocked from local access. These restrictions should not be taken as a cause of relief for organisations because it is technically possible to access these banned sites using certain proxy software (which are often free to download) or virtual private networks (VPNs). Hence, organisations must not let their guard down as it is still possible for their employees to access the banned websites, access to which could be considered illegal, in their offces. This risk can be mitigated with a combination of properly drafted policies, staff training and technical security measures.

Whether or not companies decide to take advantage of social media for business purposes, they need to be aware of their increasing use as communication tools and the associated legal consequences. In implementing clear internal policies on what behavior is appropriate and what is not, organisations can avoid inherent legal pitfalls and beneft from the advantages social media has to offer.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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Britta Hinzpeter
 
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