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The prevalence of social media has increased exponentially since the advent of smart phones. Society has embraced social media to the extent that it has become second nature and an embedded part of our lives.

Social media allows people to communicate with each other, express opinions and debate topical issues and provides people with the potential to reach an almost unlimited number of people instantaneously.

I want to discuss some issues surrounding the use of the Internet and social media within the employment context.

The first issue that needs to be considered by an employer is the boundaries that they intend to implement around the use of computers in the workplace.

It is best practice for an employer to have a written policy in respect to internet and computer usage by its staff and this should be monitored in a consistent manner.

There are a number of areas that employers will need to consider when developing a policy.

What constitutes acceptable use of internet and work computers?

An employer must consider whether the use of internet and work computers should be limited to “work related purposes”.

An employer will need to provide staff with a clear definition of what constitutes “work related purposes”.

If the employer allows staff to use internet and work computers beyond “work related purposes”, they should consider what is deemed to be acceptable use beyond “work related purposes”.

For example, the employer may allow staff to access personal email addresses, browse the internet or pay bills online.

Any acceptable use should:

(a)           be limited;

(b)           not incur significant cost for the employer;

(c)           not interfere with performance of the employee’s duties;

(d)           not affect other staff members in any way.

What constitutes unacceptable use of internet and work computers?

The employer will need to determine what constitutes unacceptable use of internet and work computers.

Some forms of unacceptable use include using the internet and work computers:

(a)           for personal commercial purposes; or

(b)           sending unsolicited bulk email;

(c)           sending confidential information of the employer to others;

(d)           any illegal purposes;

(e)           causing interference with or disruption to any of the employer’s computer network, information service and equipment, or to any user of the employer’s computer network, information service and  equipment;

(f)            distributing personal contact information of other employees;

(g)           downloading software or media files or data streams that the employee that will cause the employer to exceed its internet usage capacity;

(h)           accessing pornographic, violent or offensive conduct;

(i)             gambling online

Can the employer monitor its staff’s use of internet and work computers?

The employer should advise staff that the employer can monitor the use of the internet and computers by staff and may undertake surveillance of a staff member’s use of the internet and work computers.

What are the consequences of misusing the internet and work computers?

The employer should advise staff that it will review any breaches of its policy.

The employer should retain the right to commence disciplinary action against a staff member for breaching the policy.

The consequences for breaching the policy should be proportionate to the breach.

Drafting a Social Media Policy

When drafting a social media policy, employers should consider the following questions:

What is social media?

The Oxford Dictionary broadly defines social media as “websites and applications used for social networking.”

What does social media include?

Social media includes but is not limited to:

(a)           Social networking sites such as Facebook, MySpace and LinkedIn;

(b)           Video and photo sharing websites such as Instagram, Flickr and YouTube;

(c)           Blogs;

(d)           Micro-blogging such as Twitter;

(e)           Forums, discussion boards and groups; and,

(f)            Instant messaging such as SMS messaging.

However, it is very difficult for social media policies to list every single form of social media, since new forms of social media regularly emerge.

Accordingly, it is important that the term “includes but is not limited to” is used when defining social media, because it allows the employer discretion in determining what constitutes social media.

What limits can be imposed upon the use of social media during working hours?

In respect to the use of social media by staff during work hours, an employer may:

(a)           Prohibit staff from using social media during working hours unless they are specifically directed to do so as part of their employment;

(b)           Allow staff to use social media only during designated times (such as break times) unless they are specifically directed to do so at other times as part of their employment; or,

(c)           Allow staff unrestricted use of social media provided such use does not affect their performance.

What obligations should be placed upon staff and how far do they extend?

The following obligations should be placed upon the use of social media by staff during working hours and outside of working hours:

(a)           To comply with their general obligations as an employee;

(b)           To comply with the specific obligations set out in their agreement and/or award;

(c)           To not refer to the employer without prior written approval;

(d)           To not say or do anything or engage in any conduct which may disparage or bring the employer into disrepute;

(e)           To not disclose any confidential information of the employer (as defined by the employer);

(f)            To expressly state that the views expressed in an employee’s postings are their own views only and do not represent the employer’s views; and,

(g)           To comply with the Terms of Use of the social media platform and all applicable laws.

Staff should be advised that they may use social media outside of working hours, but the obligations contained in the social media policy will extend to their use of social media outside of working hours.

What happens if the social media policy is breached?

The employer should advise staff that it will review any breaches of its policy.

The employer should retain the right to commence disciplinary action against staff for breaching the policy.

The consequences for breaching the policy should be proportionate to the breach.

Should your business use Social Media?

Whilst social media may seem daunting, businesses should seriously consider the benefits that social media can provide.

Social media is free to use, hassle free and is a powerful and almost instantaneous mode of communication. Social media allows a business to engage in dialogue with its customers and potential customers, receive instant feedback regarding its goods or services and build brand awareness and loyalty.

It is for these reasons (and many more) that businesses are embracing social media and joining the Facebook revolution and Twittersphere.

If a business decides to use social media, we strongly recommend that it adopts a corporate social media policy. In addition to the above issues, the corporate social media policy will need to consider who will have access to the social media accounts, who may post on the business’ behalf and whether content needs to be approved prior to being posted.

For more information contact Bruce Gotterson at b.gotterson@pigott.com.au.

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.