Social media forums such as Facebook, Twitter, YouTube and Instagram have provided businesses with the opportunity to expand the way they advertise and market their products. For instance, a study found that in 2012, 34% of Canadian enterprises were using social media as a method to promote and direct traffic to their website.1 Social media has greatly increased the reach of marketing campaigns, often for a much more affordable cost. However, despite the obvious advantages obtained through the use of social media, there are serious risks created when a business opts to engage in social media.
Social networking sites and services are becoming an increasingly popular way for cyber criminals to obtain personal or business information to hack into private or work computer systems. Therefore, if a business uses social media for marketing purposes, it is imperative that the company takes adequate steps to safeguard their presence on social media. An example of such measures would be to only allow a certain subgroup of employees (who have been properly trained on appropriate online conduct) to be responsible for posting the content. Another example would be ensuring that employees are aware that they are not to post content in the organization's name unless the designated employee has approved the content.
Not only should a company be concerned with the private or personal information that can be shared by employees online, making the business vulnerable, but a business should also be aware of the further liability that can be created when employees engage with customers. Recently in Jane Doe 464533 v ND,2 the Ontario Superior Court of Justice expanded the common law's protection of privacy rights by recognizing a new tort of "public disclosure of private facts". In Jane Doe, the Plaintiff sent the Defendant a sexually explicit video of herself, based on the agreement that it was for his eyes only. However, immediately upon receiving the video, the Defendant posted the video online. Justice Stinson held that based on the circumstances of the case, the most appropriate tort was "public disclosure of embarrassing private facts about the Plaintiff". He outlined the following elements that must be met to establish this new tort. They are as follows:
- The Defendant gave publicity to a matter concerning the private life of the Plaintiff;
- The matter publicized, or the action of publication itself, would be highly offensive to a reasonable person; and,
- The matter publicized, or the act of publication itself, is not of legitimate concern to the public.
Justice Stinson determined that the Plaintiff had met all three elements of the test and was therefore entitled to damages under this new tort. Although this case involved a breach of privacy in a personal context, it still poses a concern for businesses which choose to engage in social media. For instance, if an employee partakes in inappropriate online behaviour while acting in their capacity as an agent for the company, the company may be exposed to liability, as the employee's actions can be seen to be actions taken on behalf of the employer. The area of privacy law continues to be a source of litigation and as was seen in Jane Doe, the scope of what is protected will likely only expand, especially with the overly broad elements set out in this case. As a result, it is logical to assume that the increased use of social media in the workplace will likely result in an enlarged exposure to privacy liability for both the employee and employer.
With these significant concerns, companies should have an internet usage policy in place to provide clear guidelines of what is acceptable behavior. Specifically, the policy should include what information can be posted on the internet and who is authorized to share this information. The policy should also discourage employees' personal use of social media while at work, or while in the capacity of being an agent for the company. Finally, the policy should define what constitutes sensitive information so that employees are aware of what cannot be shared
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
