Social Media Use Is Ever Increasing
There is much speculation with the increase of social media in the last decade in relation to employment. Employers must ensure they have information on use of social media within their company policy and handbook otherwise they may find it difficult to sanction an employee who has posted derogatory comments on social media.
A derogatory comment posted by an employee on social media can be held as defamatory if it portrays an untrue accusation against an employer that undermines the reputation of the company in the eyes of ‘right thinking’ members of society. The comment must be in permanent form and clearly identify the company (can be indirectly). The comment must cause the company serious financial loss.
If an employer sees a potential defamatory comment on social media they can attempt to have the comment removed from the social media website and/or bring a claim against the author of the comment and the social media website for damages if harm is caused to the company.
The employer should write to the employee to put them on notice of the rights that have been breached, in essence, that the comment could be seen as defamatory or breach of contract. The employer should set out the potential remedies it may have against the employee including action for damages and request that the employee immediately removes the comment from the social media website. The employer could further contact the social media website to request that the comment is removed from the website.
To follow practice, the employer should inform the employee that it is a disciplinary matter and begin the disciplinary process. The procedures set out in the ACAS code should be followed.
The employee could argue that the comment was true, an honestly held opinion, was a matter of public interest or that they are covered by legal privilege. If an employee is dismissed following the comment, they could argue that the comment was private. However, the Employment Tribunal usually decides that a mistaken belief in privacy is not a reasonably explanation.
If the employer takes action against the social media website, the social media website could argue that they had no reason to believe or did not know that it had caused a defamatory statement; a defence of innocent dissemination. To argue this, the social media website should remove the comment as soon as it receives the request from the employer.
If disciplinary action is taken against the employee, the employer could use the comment as evidence in the proceedings if it is obtained lawfully. If an employer hacked into the employee’s account then this would be deemed unlawful. If the employer asked a different employee to provide copies of the comment, this would be lawful. Without the evidence, the employer would find difficulties in bringing disciplinary action.
If the author of the comment is unknown, the social media website should be able to provide some information to identify the author such as the email address that is used to log into the social media website. Again, the employer should contact the social media website putting them on notice of the potential defamation claim and request this information. If the social media website refuses to provide this information, the employer could make an application to the Court to obtain an injunction demanding that the social media website releases the information.
If you are an employer and want further advice on strengthening your company policy or handbook relating to social media then please do contact us. If you are an employee and disciplinary action has been taken against you, we can assist.
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