What can employers do to protect themselves from employees’ damaging remarks on social media websites?

Bloggers often want to maintain anonymity so they can speak openly and honestly about their employers and professions without fear of disciplinary action. Employers are no doubt aware of the potential damage that can be caused by social media misuse, but anonymous bloggers present particular challenges for organisations.

A recent article in the Guardian revealed that police forces were taking steps to clamp down on officers who blog or tweet anonymously. The measures reportedly included trying to identify anonymous police bloggers and requiring police officers seeking internal transfer to identify social media usernames and, in some cases, passwords to social media accounts.

In the US, a coffee-shop employee blogging anonymously about his boss and customers as ‘Bitter Barista’ was recently dismissed after his identity was revealed by a coffee website.

Contractual duties

Employees have implied and, in many cases, contractual duties of confidentiality to their employers, as well as duties of fidelity. Employees disclosing confidential information on a blog, or being openly critical about an employer and potentially damaging its reputation, are likely to be in breach of these duties, as well as an employer’s disciplinary and social media policies.

Defamation

Where anonymous blogging is also defamatory, employers can complain to the website operator, requesting the removal of the defamatory material. At present, website operators will often comply with such requests for fear of otherwise assuming responsibility for the material (although this may change when the Defamation Bill becomes law and further protections are introduced for website operators).

Whistleblowing

Bloggers might argue that they are protected as a whistleblower from detriment or dismissal. This might occur in limited circumstances, for example, where the employee has previously made a protected disclosure to the employer regarding the same information or where employees have reason to believe their employer will subject them to a detriment if they make the disclosure to the employer.

Anonymous bloggers may also point to the European Convention on Human Rights (ECHR), as this protects freedom of expression. However, this is subject to restrictions including, in particular, those necessary to protect reputations or to prevent the disclosure of confidential information.

In essence, employees should exhaust other avenues, such as an employers internal whistleblowing/grievance procedures, before embarking on the ‘blurting everything out on social media’ route. However, both bloggers and employers need to consider both context and circumstances regarding the reason/purpose of the blog in the first place.

What can employers do?

A comprehensive social media policy, properly communicated to all staff, is vital.  It can clarify what constitutes acceptable and unacceptable conduct and identify what may give rise to disciplinary action or dismissal.

Whether an employer can take action against an employee blogging anonymously depends largely on whether their identity has been discovered. In high profile cases, an employee’s identity might be uncovered by journalists or other interested parties. An employer’s IT policy may also assist with identifying the source of anonymous blog posts made from the employer’s IT system. In defamation or breach of confidentiality cases, an employer may be able to obtain a court order requiring the website operator to disclose the name of the blogger so it can take further action against the individual, although such applications may be costly and time consuming.

Risks

However, requiring employees or job candidates to disclose details of their social media presence and passwords, as a matter of course and without good reason, could fall foul of the rights to respect for private life and freedom of expression under the ECHR. Such steps may also result in employers breaching data protection or discrimination legislation (for example, if recruitment decisions are based on a candidate’s protected characteristics, as revealed in a social media account). In the US, employers in some states are prohibited from requesting social networking passwords, and here the Information Commissione’s Office has warned that it would have serious concerns about UK employers making similar demands.

Although employers can take steps to protect their reputation and confidential information, anonymous blogging is, by its very nature, difficult to control. As the law surrounding social media continues to develop, a sound social media policy is the first step to protecting an employer’s postion.

Passwords

Would you work for a company which requires you to disclose your social media username(s) and/or password(s)?

Its a NO for me and even if I did, I would just change my password 🙂

Source: Schell, A. (2013) Anonymous Blogging. People Management.

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