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As more businesses look to exploit the opportunities offered by social media, what are the potential commercial and legal risks? Angela Protheroe, employment law specialist with Harding Evans, explains. Social networking sites are quickly cementing their place in the nation’s collective ‘favourites’ folder and employers cannot ignore the fact that most people are now aware of or using sites such as Twitter, Facebook and MySpace. In web traffic terms, social networks overtook retail websites in the UK for the first time in January 2009 and by March were receiving 14 per cent more visits, with traffic to Twitter alone increasing by 974% since last year. Blogs, microblogs and social networks have transformed business communications, allowing organisations to share news, recruit staff and engage with customers as well as offering cost effective opportunities to reach new audiences and markets. But there are potential legal threats to consider, and it is important to balance the legal risks against the many great opportunities provided by these online tools. With staff able to post unsanctioned comment on the internet, control over company reputation and data protection is arguably tougher than ever. Companies may be liable for the actions of staff using the internet if it is reasonable to assume employees are acting with their employer’s authority or if actions can be linked to the employer. Firms should therefore guard against such liability, including copyright infringement; security and data breaches; defamation; and other illegal or unlawful activities such as obscenity and harassment committed by staff. There is a common misconception that the internet is an anonymous space with no repercussions in the real world, but this is slowly changing, partly due to recent court decisions in which service providers and website owners have been ordered to disclose the identity of anonymous posters of defamatory statements. Virgin Atlantic and Domino’s Pizza are just two brands recently forced to act over comments made by some of its staff on social networks, both incidents resulting in immeasurable negative publicity for brands that depend on their customers’ trust. Meanwhile a Scottish teacher is being investigated by her local council over claims that she updated Twitter during work time and used it to discuss her pupils and school. The Council is investigating whether she put sensitive information on public display and whether it was during work hours. Luckily it is possible to put control measures in place both to prevent such activity occurring in the first place and also to minimise the impact of any such incident. Employment contracts can require that staff comply with a written policy restricting certain public comment by employees. An policy outlining simple ‘dos and donts’ of online activity can be an effective means of preventing negative comment and can cover activities carried out on company time and at home. Employees should be made aware that they are personally responsible for their online posts and disclosure of confidential or sensitive information about employers should be prohibited. By identifying certain activities as gross misconduct, employers can reduce their exposure to unfair dismissal claims in the rare event that an employee's online behaviour requires serious disciplinary action. Alternatively, employers may wish to consider blocking access to such sites from work computers, although blanket bans may lead to ill feeling and aren’t always effective. It is, of course, quite within the rights of an employer to decide how their IT equipment is used. However, in the spirit of compromise, it is possible to draw up the policies outlined above to regulate usage, and such enforced guidelines can prove highly effective. Where a blogging and social networking policy isn’t in place, or where employees simply disregard them, companies need to act quickly to limit any damage to their brand. The quickest approach is often to ask the responsible employee to remove the content but where this is not effective, you can require the website hosting the content to remove it by sending a take down notice to the website operator outlining details of the content’s unlawful nature. Be warned however; this can be problematic if there is a question mark over whether the content is unlawful in the first place. While many employers see social networking sites as somewhat of a nuisance, their marketing and networking benefits to employees and to organisations are undeniable. Strictly enforced but reasonable policies on internet usage are the way ahead; with millions in the UK already registered on sites like Twitter and Facebook, it is in every employer’s interest to tackle the issues sooner, rather than face the potential fallout later. Twitter: the facts Social media - business opportunity or legal timebomb
In the last year use of Twitter has soared, with UK internet traffic rising by 974%
A Google search returns up to 500m mentions
Software has been developed that allows employees to disguise Twitter as a spreadsheet to hide their ‘tweeting’ at work from prying eyes
The latest trend is Twitter novels – ongoing slices of life captured in 140 character bites
Celebrity Twitter fans include Stephen Fry, Demi Moore, Jonathan Ross, Oprah Winfrey and Lily Allen
A US TV network is working on a major TV series based on Twitter
Information about the Mumbai terror attacks in November 2008 was transmitted via Twitter before many of the mainstream news channels.
Starbucks, the Red Cross, Downing Street and President Obama all have active and well-followed Twitter accounts.
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