Does your workplace social media policy reflect the way that social media is being used on a day-to-day basis in your organisation? What are the benefits of having an updated policy in place?
Deploying social media is now deeply embedded in many employees’ job roles and duties, such as promotion and marketing, recruitment and communicating with customers and suppliers. In addition the widespread personal use of social media by your employees, during working hours or outside work, can adversely impact your business in a number of different ways and often creates tensions and challenges to the employment relationship. Employees’ use of social media, whether for business use or personal use, creates a wide range of significant risks and potential liabilities for any business, from vulnerability to losing important contacts through to problems accessing your own accounts when employees leave.
Adopting a comprehensive social media policy allows you to establish clear standards and expectations of good practice, at the same time alerting your staff to the practical pitfalls and legal risks which their use of social media could cause. Regular review and updating of this policy enables you to keep pace with developing technologies and practices, from the integration of artificial intelligence tools with social media platforms to the latest trend of prank videos on TikTok. With the backing of other policies and contractual obligations, the policy provides the framework for you to take remedial action in the form of disciplinary proceedings where employees have crossed the boundaries of acceptable conduct in their use of social media.
We look at some of the risks to consider in formulating your social media policies and reviewing whether you need to update other policies, contractual terms and staff induction and training.
Who has authority to communicate on behalf of the business?
You may need to be clear about which individuals can use social media on behalf of your business and which need to get prior authority before posting anything. Staff who engage in social media activity on behalf of your business should be given particular guidance on expectations and best practice, and you may require them to undergo specific training for this aspect of their job role.
Other employees should be made aware that they must not express any opinions on your behalf when they use social media.
Who owns and controls the work account?
The legal ownership of each social media account will be determined by the terms of the provider. For example, LinkedIn’s terms state that the account holder owns the account.
Often employees set up work accounts on behalf of an employer using their own log-in credentials. Your policies need to ensure that ownership of these work accounts remains with your organisation, and that passwords are shared or transferred as part of an exit process.
Who owns business contacts gathered via social media?
The courts have found that the contacts gathered by an employee on a work account during employment belong to the employer.
It has long been established that departing employees cannot take a database of their employer’s contacts with them to use to compete against them. This principle was applied in the social media age in Whitmar Publications v Gamage . A former employee was ordered by the High Court to give her previous employer the login details of four LinkedIn groups that she had managed for the employer. The former employee had used the groups to promote a new business that she and two other former colleagues were setting up.
Using personal accounts for work purposes
The situation becomes less clear when employees use their personal accounts for work purposes, for example where the employee already has a number of relevant contacts and they use the same account for work and personal purposes. Employers should set clear boundaries for the employee’s use of personal social media accounts for work purposes. To avoid blurring of lines and the risk of losing business contacts, you could decide that this is not permitted. This would need to be made clear to employees in your social media policy, and could also be included in employment contracts.
If you do allow the use of personal accounts for work purposes, your policy should state that any business connections made while working for you belong to the company. The policy should make arrangements for employees to transfer over this information when they leave and requirements to delete the information from their account, without copying. This may however be difficult to enforce, particularly if it is hard to determine which contacts were made through work-related activities and which in their personal capacity or through a previous employer.
What to address in your policy
We recommend having a social media policy, which is implemented through training at induction and with regular updates.
The policy needs to be reviewed regularly and should tie in with other relevant policies, such as:
- data protection;
- anti-harassment and bullying;
- equality, diversity, and inclusion;
- IT and electronic communications.
The policy should encompass both guidance on the use of social media for company purposes and your expectations in relation to personal use of social media which could impact on your business.
There are many risks to a business through employees’ online activities, which the policy can address as relevant to your business. Although not exhaustive, here are some of the issues and areas of potential liability to consider:
- Employees need to be respectful and professional at all times online. Aside from reputational damage, an online spat with a competitor or making degrading comments about a previous supplier could risk claims of defamation.
- Employees may need to be warned not to engage in false or misleading advertising or unethical marketing practices such as posting fake reviews.
- Employees need to be careful to ensure that they do not breach confidentiality, data protection law, or any non-disclosure agreement relating to negotiations when sharing news about the business, such as winning a major customer or a potential acquisition. They also need to protect the confidentiality of your sensitive business information, such as relating to the performance of the business.
- If reproducing text or copying a similar trademark or brand, employees need to be aware that if they do so without the consent of the owner, they could infringe intellectual property rights.
- If comparing other businesses to advertise your services or products, employees need to ensure that they comply with the rules on comparative advertising.
- Employees should use the company social media account and use a work email address to open up accounts such as LinkedIn. The employee should share the access details with a colleague so that they are not the sole gatekeeper to such a powerful asset. Make clear that the account belongs to the employer and that the connections made through that account are part of a database of information belonging to the employer.
- If the employee is allowed to use their personal account for work purposes, you should set out any conditions for this – such as requiring them to make it clear when they are posting on behalf of the company and when they are posting in their personal capacity.
- Depending on the business, employees could also be required to add contacts made through social media to a database held by the employer. This management of your customer information is particularly critical where employees could solicit your customers in breach of their post-termination restrictions.
- Employees must not use social media to harass, bully or discriminate against their colleagues or other persons.
- Employees should ensure that their social media profiles and communications are compatible with their professional image and your business reputation, particularly where the employee identifies that they work for you.
- Employees should be required to update their social media profiles when they leave so that they no longer hold themselves out as connected with your business.
- Your right to monitor an employee’s social media activity and communications needs to be justified by legitimate business purposes and exercised in line with privacy and data protection obligations.
Provisions in your employment contracts
In addition to having a well-drafted policy, relevant contractual provisions need to be fit for purpose and bespoke to your business. Clauses that may need a refresh include confidential information and data protection.
If there is a risk that the employee could use their business contacts after their employment has ended to compete or lure away customers, a post-termination restrictive covenant limiting what they can do for a specific time could give you further protection. This can include specific requirements in relation to social media accounts.
Contractual rights allowing you to restrict employees’ work activities during notice periods – garden leave clauses – can serve a similar aim to post-termination restrictions.
How we can help
We can help you with ensuring that your policies and employment contracts continue to protect your business as the use of social media evolves. We can also advise you in relation to the handling of situations involving the misuse of social media by your employees. Contact Patrick Glencross on 01227 763939 for further information.
Please note: This article is for general information only and does not constitute legal or professional advice.