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The Social Media Debate – Public vs private

12/06/2013
Social media technology is so much a part of every day life that it is difficult to imagine that ten years ago, few of us would have had a Facebook profile. Now we tweet from our phones on the go, Social media technology is so much a part of every day life that it is difficult to imagine that ten years ago, few of us would have had a Facebook profile. Now we tweet from our phones on the go, connect to our colleagues and clients on LinkedIn and a quick Google search can reveal a surprising amount of information about the average person.

While social media offers businesses new ways of recruiting talented individuals and enables employees to better network with their employer's customers, it comes with risks too. The first client workshop of the Employment Law Training Programme 2013/2014, "Handling social media misuse", was a joint endeavour between our Employment and Dispute Resolution teams and sought to give employers a framework to successfully navigate this developing area of law. iPads were placed at each table and attendees were able to live blog their comments and answers to case studies as the workshop progressed.

Some of the main points of discussion from the workshop include:

  • Do you Google? While it is a temptation to search for job applicants on Google or social media networks, and figures suggest that increasing numbers of employers do so, the potential risk of this approach is a discrimination claim. Such steps may also breach the provisions of the Data Protection Act 1998 or, in the case of public sector employers / those exercising a public function, the European Convention on Human Rights.

  • Employee Misconduct – While the usual rules regarding offline employee misconduct – to conduct a reasonable investigation and to have a genuine belief in employee guilt of misconduct that is reasonably held – still apply, there are some developing principles of case law that are more relevant to the online world. The courts have recognised the importance of clearly worded social media policies and training, the importance of avoiding a 'knee jerk' reaction to employee social media misuse (in particular where it involves reputational issues) and the need for employers not to impede too far on an employee's rights to privacy, freedom of expression and freedom of thought and belief.

  • Contacts and Connections – It is not yet clear what approach the courts will take to the ownership of, and confidentiality in, an ex-employee's connections to clients and colleagues via social media sites such as LinkedIn. The best approach for employers is to review contractual confidentiality and post termination restrictions to ensure that they cover such issues.

  • Defamation and Anonymous Blogging – Where an employer suspects that an employee is posting defamatory comments online under the cloak of anonymity, it can ask the website host for information on who has made the comments or, if this is refused, seek a Court Order to compel the website host to provide the information. These disclosure applications are common and are usually uncontested by the website host.


If you would like a copy of the workshop materials or have any other questions, please contact James Warren. If you would like to be invited to future employment events, please contact Louise Fernandes-Owen, Senior Associate (PSL), who coordinates the Employment Law Training Programme.

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