Matthew Pryke is a partner at Hamlins LLP and an expert in commercial and intellectual property law
Social media plays an increasing role in our lives. Whether businesses or individuals choose to engage, it is essential they understand the legal challenges.
In particular, it is essential employers ensure their social media use policy is appropriate and forms the basis of a protection programme which is enforced to avoid leaving the company exposed.
We have all heard stories of the problems social media can cause employers. Recent examples include HMV staff controlling HMV’s public voice while redundancy discussions were underway.
What is less known is the number of employment tribunals and cases of disciplinary action in connection with employees’ use of social media. Many of these have focused on social media policy wording.
A social-media-use policy requires crafting by a professional to ensure it reflects the current law and the manner in which the business and its employees use social media.
The policy statement is the “building block” for ensuring social media does not become a distraction or cause a loss of productivity. Crucially, it should ensure social media remains in the business's interest while avoiding obvious risks.
A firm’s employment policy is not part of an employee’s contract of employment and should be updated from time to time to reflect developing case law in this area.
The policy should deal with all forms of social media including Facebook, Linked-In, Pinterest, Vine, Twitter, Wikipedia, all other social-networking sites and internet postings such as blog sites and similar.
It is essential the policy applies to social-media use for business and personal purposes. In addition, the policy needs to cover social-media activity outside of normal office hours.
It needs to relate not only to business IT equipment but also to staff members’ smart phones and mobile devices.
The purpose is to provide a clear warning to staff that breaches of policy may result in disciplinary action and even dismissal. Crucially, staff should be fully aware they have an ongoing responsibility to their employer and its confidential information and IP rights.
Companies should be both realistic and consistent in policy towards use of social media. A number of employers have been tempted to make blanket bans, but this is not practical.
Consideration should be given to the hours people work and whether employees need to be involved in social media as part of their role.
It is important employees are made aware that their use of social media and IT resources is likely to be monitored. There should be no expectation of privacy in connection with information, files or data stored as part of social media.
This is crucial if a business needs to carry out an investigation of an employee or identify the culprit in unhelpful social-media activity.
Responsible use is a key area, where a business should address details of what it can and cannot expect of employees.
Employers should be concerned to protect business secrets, confidential information, goodwill and reputation, and intellectual property assets.
A good social-media policy should provide specific examples of actions which would not be in compliance and impose a number of broader obligations on employees to provide the broad protection a company needs.
A policy is only as good as the steps taken to promote and enforce it. Training is crucial for both employees and management to understand what is appropriate and when disciplinary action may be necessary.
Without training, it is unlikely the significance of a social-media policy will be fully appreciated.
There is clearly a balance to be struck between allowing social media to be responsive, communicative and social, and avoiding the pitfalls that uncontrolled activities create. A social-media-use policy can be the cornerstone of this strategy.
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