Commercial Alert

Rapid developments in technology, and in social media in particular, raise challenging issues for businesses.

In times of change the law tends to lag behind events, and the more rapid the change the more likely a problem may arise not covered by specific existing laws. Legal disputes meanwhile are decided in the courts on the basis of existing laws. This can make it difficult to predict the outcome of disputes, and the result may not be what you would wish.

Recent issues litigated have included:

• Whether employers can use Facebook to obtain details about employees, for example to assess the character of a prospective employee;


• Whether employers can use social media to monitor or investigate accusations of bullying or harassing colleagues;


• Who owns social media information? – For example, who owns the list of contacts or the log-in details of an employee’s account on a site like LinkedIn? The employee may be linked in to many of the employer’s customers, and the employer may not want that link to facilitate the employee, once ex, to contact his or her customers;


• Can employers control what employees say on social media? – For example, if an employee creates a post uncomplimentary to the employer?


• Can an employee get into trouble with their employer by making inappropriate comments – for example racial, sexual, or religious – even though such comments are made to their friends outside work?

All of the above describe issues recently before the courts, involving issues which are becoming increasingly common.

What to do?

To best protect your position as an employer, we strongly recommend you establish a social media policy, regularly updated, so that all employees know what the boundaries are and what is unacceptable. For example, the policy may educate them that they must not in any circumstances post offensive comments about a fellow employee or criticism of the company, even if it is done outside the office.

The policy should clarify that passwords and other log-in details are the property of the employer, and should tackle the issue of business network contacts made by virtue of the employee’s job.

Practical steps should be taken to ensure that the company has control over all social media log-ins and passwords to ensure that a former employee will have no access after they have left – particularly important if there is any ill-feeling following the employee’s departure.

If you would like help to draw up your social media policy please contact Robert Hill or Carl Selby on 01494 525941 for an informal discussion.