Social media law in employment: What you can control and what you can’t

How can you ensure work productivity at the same time as letting employees promote your business on social media?


Is there a way to allow them to build an audience, promote your brand and sell your products via Facebook and Twitter but still own the accounts and customers when they leave?


Social media use: How much is too much?


Case law suggests ‘excessive use’ of social media by employees during work hours may constitute a valid reason for dismissal. Why? Because there may be a serious decline in your employees’ productivity.


In one Fair Work Australia (FWA) case (O’Conner v Outdoor Creations Pty Ltd 2011), an employee had been on a chat room during the previous three months 3000 times. The company lost due to lack of evidence but it was suggested had they been able to evidence his overuse and given him an opportunity to respond, it may have been enough to dismiss him.


Right to dismiss: Facebook rant


Can you dismiss an employee if they post comments against you, your company or other colleagues on social media? There is the argument that Facebook, Twitter and other forms of social media are personal and belong to the employee. They also argue that they have a right to express their personal opinion outside of work and that it is no different to having a drink after work and complaining.


The counter argument to this is that the reputation of the company is ‘out there’ for all to see and such ‘public’ comments are defamatory if they are making derogatory comments about management.


So can you fire someone for making comments on their Facebook account? In one case, Stutsel v Linfox Australia Pty Ltd (2011), the employee was making ‘derogatory’ and ‘sexually discriminating’ comments about two of his managers. He was terminated but he argued the action was harsh, unjust and unreasonable. The result was declared unfair dismissal but it likely would have been different if Linfox had a clear social media policy in place outlining penalties for any breach.


Ownership of social media: Who owns the Twitter account?


As we saw with Kyle and Jackie O recently, they were seen as a ‘brand’ and claimed ownership of their social media accounts and followers. But do you ever own your social media account and followers/friends? Not if you read the social media terms:


If you have ever read Facebook’s terms, you will find that Facebook says they can keep and use your material for an undetermined period even after you delete your account and Twitter can reuse and pass on your information to any organisation they choose.


LinkedIn states they can copy and make derivative works of ‘user content’ while Instagram had to change their policies after an outcry for claiming right to use member’s photos for their ad campaigns.


Advice to businesses: protect yourself


1. Clear social media policies


Have a clear and defined social media policy regarding use at work, appropriate work related comments on personal accounts and also defining penalties for non-compliance. According to Fair Work Australia guidelines, it’s no longer enough to provide social media policy training at induction or in employee handbooks.


2. Terms in contracts


Include terms in employment agreements specifying ownership of social media accounts and re-enforcing social media policies including any breach terms.


3. Workplace training


Implement a training and awareness program to ensure there is a clear understanding of what constitutes ‘acceptable’ social media behavior.


Examples are only just starting to bubble in Australia around employers trying to understand how to protect themselves, their brand and the reputation of the company and management. We are now getting more guidance through cases on this but until then, protect your brand.


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