Niri Shan Partner and Head of Trade Marks, Copyright and Media Group Paul Callaghan Partner, Employment 29 June 2010 Social Media A Guide for Employers

Topics >Official and unofficial company-branded pages. >Employee use and main areas of risk. >Using information from social media in relation to prospective/current employees. >Tips for minimising risks for employers.

Official company social media pages >Company responsible for its own content posts/Tweets on its own website and official third party social media sites. >Is the Company responsible for posts by employees on a user generated content part of the Company’s website or social media web pages?

‘Unofficial’ company-branded pages >E.g. pages set up by disgruntled employees. >Company unlikely to be liable for content on such pages. >But if people think it’s an official company page: -complaints may be directed to the company -Unlawful posts may damage the company’s reputation. >Company may be able to take action against the site if: -Site appears to be official whereas it is not (e.g. trade marks and passing off) -There are defamatory posts -NB A heavy-handed approach may backfire.

Employee use of third party social media websites >Is the Company responsible for tweets/posts made by employees on third party social media websites?

Employee use - balancing the interests >Whether to ban, control or monitor use. >Interests of employer: -Engage with customers and increase awareness of brand and marketing messages -Protect the company brand and reputation -Avoid potential liability for unlawful conduct by employees -For its employees to be brand ambassadors? >Interests of employee: -Right to a private life -Right to freedom of expression.

Employee use – main areas of risk for employers - Employee damaging brand/reputation The morning before his presentation to FedEx, a major client, the VP of Ketchum tweeted about his impressions of their base of operations, Memphis, Tennessee. FedEx responded: “We do not know the total millions of dollars FedEx Corporation pays Ketchum annually for the valuable and important work your company does for us around the globe. We are confident however, it is enough to expect a greater level of respect and awareness from someone in your position as a vice president at a major global player in your industry.”

Potential causes of action arising from use of social media by employees >Defamation -e.g. a former/current employee defaming other staff or customers >Breach of privacy/data protection -Reasonable expectation of privacy -Sensitive personal data e.g. political opinions, trade union membership, physical or mental health/condition, sexual life. >Breach of confidence -Is information confidential? E.g. details on new products, financial results, proposed deals. -Duty of confidentiality? E.g. from employment contract or implied from circumstances or employer/employee relationship. >Breach of relevant advertising regulations -e.g. Making a financial promotion >Obtaining identity of anonymous suspected employees.

Employer liability >Employer liability -In the course of employment? -Does the employer encourage employees to use social media? >How could an employer protect itself? -Social media policy?  20% of companies worldwide have a formal social media policy (Manpower survey, Jan 2010)Manpower survey -Training? -Monitoring?

Issues for a policy >Do not hold yourself out as representing the Company >Do not make comments about the firm or employees or client >Do not post pictures of colleagues

Issues between employees >Potential risks -Harassment e.g. poking on Facebook?poking on Facebook -Could making a Facebook friend request amount to putting undue pressure on an employee? e.g. if an executive to a new, young member of staff.friend request >Points to consider -Is it appropriate for employees to be Facebook friends? -Should the employer encourage employees to treat each other over social media as they would in the office?

What can you do about damaging use by an employee? >Potential employment law issues -Fair/appropriate to dismiss employee?  Section 98 of the Employment Rights Act 1996  Fair reason and acted reasonably in treating that reason as sufficient?  Bringing company into disrepute? By whose standards?  Affects ability to do the job? -Limited test cases on such dismissals – attitude of Employment Tribunals yet to be determined. -Breach of employment contract? -Company property / non-disparagement restrictions on termination.

Using information from social media >Prospective employees -Social networking sites as a recruitment tool -“Googling” candidates  Social networking site more likely to lead to discovery of previously unknown information  Risk of finding out information not relevant to recruitment decision  Discrimination/harassment claims? –Protected classes: sex, age, disability, sexual orientation, religion or belief, marital status, race, colour or ethnic/national origin  Information Commissioner Guidance.

[From: I'm Not Actually a Geek] Not Actually a Geek

Monitoring current/former employees? >Non-disparagement – check compliance? >Data protection/privacy issues e.g. with looking at personal s. >Breach of confidence? >Post-termination – who owns contacts? -e.g. Hays employee ordered to disclose Linkedin contacts

Tips for minimising risk >Restrict use of social media at work. >Trust employees to use social media responsibly. >Train employees on how to use social media responsibly. >Implement a social media policy. Part of employment contract or separate? >Monitor use of social media? Only when become aware of a specific issue, or on an ongoing basis? >Adopt a strategy that fits with the company culture.

Niri Shan Partner and Head of Trade Marks, Copyright and Media Group Paul Callaghan Partner, Employment 29 June 2010 Social Media A Guide for Employers