Employers liable for employee libel on Social Networks!

Posted by Geraldine Hunt on Fri, Aug 9th, 2013

With social media sites at virtually every employee's fingertips, libel via the internet is becoming prevalent. The unprecedented growth of social media has seen the number of defamation cases involving online content rapidly rise. Several high profile cases are ongoing including Lord McAlpines legal case for defamation against Twitter users who wrongly named him as a paedophile. Social media sites and users including companys using social networks need to smarten up their act as defamation cases are being taken and won.

The popularity of social networking sites such as Facebook and Twitter with over a billion users worldwide and the ability for users to share their views, or 'retweet' defamatory comments present a huge problem for individuals and companys trying to protect their reputations from such harmful user-generated content. What makes Twitter  particularly risky is that anyone can rapidly reach a huge audience if their post "goes viral" and is reposted by other users.  Employers need to stress the importance of clear policies so they can avoid libel risk on social media among their employees.

Workplace harassment, discrimination and bullying via social on the rise

Wall posts on Facebook and tweets on Twitter have led to legal cases of workplace harassment, discrimination and bullying. Companies must be vigilant about their employees’ online activities. Wall posts on Facebook and tweets on Twitter have led to legal case of workplace harassment, discrimination and bullying. Alongside this is the damaging effect on the company’s brand and goodwill of these libellous comments by employees or customers. Equally workers sharing too much information online has lead to confidential and proprietary information leaving  companies. 3.5 billion pieces of content are shared each week on Facebook, a recent security industry survey showed that 73% surveyed thought employees share too much online. 1 in 5 said that they themselves had been negatively impacted by information exposed on social media.

A company’s reputation is often its most important asset. Damage to reputation can lead to lost customers, revenue,  and employees. Reputational risk is becoming a top concern for companies of all sizes. Social media has exacerbated these concerns. With the speed of social media and its enormous and growing reach a company’s reputation can be ruined in a matter of minutes, as disgruntled employees or even competitors can post defamatory comments instantaneously and often anonymously across the world .

Social network content admissable in court

Content from social networks is now admissible in court to be used as evidence, currently a Texas lawmaker is proposing to allow people be served subpoenas through social media,  “Facebook firings” of employees for their online misconduct have become almost commonplace. Virgin Atlantic Airlines, for example, fired 13 cabin crew members after they made candid comments on Facebook about the airline, its passengers and its planes.

Some larger companies have formed media response teams to monitor negative comments and more recently companies have begun fighting back by bringing lawsuits against these individuals. The flip side of this situation is when an employee, using their employers equipment and social media accounts, defames an external individual or company.

Employers face possible liability for actions by employees via social networking sites

Should an employer be held responsible for this libel if undirected and unsanctioned? The legal position of an individual posting content online, be it on Facebook, Twitter, is clear: he or she is responsible for that content. Ignorance of the law is not a defence and that applies not just to individuals, but also to employers who could find themselves taking responsibility for statements made by their employees which are later deemed to be slanderous. Many users are surprised to learn that they can get into trouble not only for posting libellous information, but also for simply retweeting or reposting someone else's tweet. Employers face possible vicarious liability for actions by employees via social networking sites, including defamation of customers, employees, or competitors.  If an employer knows or has reason to know that an employee is engaging in such activity, it may be deemed vicariously liable if it does not take action.

Clear Guidance via a social media usage policy is vital 

An employers need to provide clear guidance to staff regarding how they use social networking sites in the workplace to ensure that employees use sites responsibly and are careful about the comment they make online. A clear social media policy should be in place.This policy needs to clearly set out that defamation law applies to all employees using social media, and particular care should be taken when using company social media accounts. Communication of company's social media policy is vital as is ensuring that the policy is clearly understood. Without such a policy, uninformed employees are unaware of the potential harm of their actions.

Clearly Define Your Business’s Social Networking Policy in the Workplace.

Employers should first decide if they support the use of social networking sites in the office.  It is now clear that banning the use of social network has an adverse effect on employee morale and importantly this means the company can’t enjoy the many business benefits that are available via social networks. Supporting the use of social networks within the bounds of a clearly defined internet usage policy is required.  Some guidelines in creating a social media policy include :

When posting on social networking sites, employees should not speak on behalf of the company unless authorized to do. If an employee mentions the company in any capacity on a website without  authorization to speak on behalf of the company, the employee should state that his views are personal and not a representation of the company. Employees should refrain from posting any comments that could be construed as discriminatory or defamatory. A definition of harassment and defamation with examples would be helpful to include.

Define the policy regarding the sharing of business information

Social media is here to stay, and it represents a paradigm shift in how people communicate and share information. One point which is clear from recent legal cases is that we are all publishers now, so both individuals and employers would be wise to ensure they are fully informed. It's not a tough nut to crack, but you have to raise the security bar of everyone in your organisation to make your social media strategy a success.

You might also be interested this article on how fake Linkedin contacts are being used to fuel phishing attacks.