Guidelines

on Social Media Policies

Developed by the Law Society of NSW Legal Technology Committee

Social Media - introduction

The term social media encompasses many different types of internet applications that allow user-generated content and multi-directional exchange of information. It includes blogs and microblogs (Twitter, Yammer), social networks (Facebook, MySpace, LinkedIn, Legal OnRamp), wikis (Wikipedia), podcasts, social bookmarking sites (Digg, Delicious), forums and discussion boards (Google groups, Yahoo! Groups) and photo and video sharing (Flickr, YouTube).

There are now more than 500 million active users on Facebook, more than 120 million videos on YouTube, about 75 million users on Twitter and about 900,000 legal professionals on LinkedIn.

Social media is changing the way potential clients evaluate, select and communicate with lawyers and it is blurring the borders between professional and private life.

While 74% of employees surveyed by Deloitte Touche LLP in the US in April 2009 agreed it is easy to damage a company‟s reputation on social media, only 22% of companies surveyed were found to have a formal social media policy. 

 

General Guidelines

The purpose of a social media policy is to provide guidance on the use of social media at work and at home. It is important that employees understand the difference between making representations on social media platforms on behalf of the firm and the personal use of social media.

  • The social media policy should be general so that it can include the large variety of applications.
  • If social networks are used by the firm, site administrators should be appointed to develop content, manage items for posting, ensure compliance with the firm‟s social media policy and respond to inaccurate or negative comments.
  • The social media policy should provide direction for the employee‟s private use of these applications so that the dangers associated with referring to other employees and the firm are clear. Employees must accept personal responsibility for items posted on individual sites and not cite clients or partners without their approval.
  • All policies such as those providing guidance on email and IT use should be reviewed to ensure compatibility. The practice should have Current as at March 2012 documented standards for the quality of communication with clients and other parties in relation to legal work it undertakes. These will include templates, precedent documents and telephone scripts where such aids are efficient.
  • Consideration needs to be given to relevant legislation, particularly industrial law, codes of conduct and workplace agreements.
  • Accuracy and compliance with professional rules of conduct and ethics should be encouraged as well as honest identification on social networks to create trust.
  • Posts should be informative, brief and direct so that they add value to a discussion and employees reminded to be professional, respectful and discreet.
  • Errors in content, spelling and grammar should be corrected promptly.
  • Employees should be encouraged to respect their audience and refrain from controversial or potentially inflammatory subjects, avoid personal attack or hostile communication.
  • Reminders about not disclosing confidential information and respecting privacy should be included.
  • Disclaimers, such as “the postings on this site are my own and don‟t necessarily represent……..positions, strategies or opinions” should be included for personal use of social media.
  • Users should be aware that lawyer-client relationships can be created online.
  • The importance of respecting copyright, trademarks, trade practices law, professional rules regarding advertising and legal marketing should be emphasised.
  • Users of social media should speak in first person and not use it for covert marketing or public relations.
  • Online activities should not interfere with work commitments.
  • Provide information about privacy settings on social networking sites and a section for frequently asked questions.

Steps in implementation

  • Draft the social media policy for the firm.
  • Provide training and accreditation for employees.
  • Use the policy and refine it to suit changing needs and new forms of social media.

Examples of social media policies

  1. Telstra
  2. Deloitte Australia

Issues that arise from the use of social media

Issues involving the use of social media have become more prevalent, particularly in the past 18 months, in industrial disputes and family law in Australia and New Zealand.

1. Comments about employers, the firm and fellow employees

(i) The applicant in Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358 (24 September 2010) was dismissed for a number of reasons, including her public display of dissatisfaction with her job on her Facebook page. Commissioner Bissett of Fair Work Australia held at [50] – [52]:

Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some case, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

It is well accepted that behaviour outside working hours may have an impact on employment „to the extent that it can be said to breach an express term of [an employee‟s] contract of employment‟.

A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of a Rose v Telstra consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

(ii) In Wellington Free Ambulance v Adams [2010] NZEmpC 59 (17 May 2010) the interchange between employees on Facebook and the abusive comments was considered in the issue of unfair dismissal.

(iii) The Employment Relations Authority (Auckland) in its determination in Hohaia v New Zealand Post Limited (17 August 2010) found that the applicant had been dismissed because he operated a Facebook blog which brought New Zealand Post into disrepute and seriously damaged its reputation and denigrated and humiliated a work colleague. The site clearly identified the applicant as the holder of the Facebook profile and identified him and others as working for New Zealand Post as Posties.

2. Defamation

(i) The plaintiff in Ives v The State of Western Australia [2010] WASC 339 alleged that words defamatory of the plaintiff were published on a website hosted by LiveJournal, a social media internet platform.

(ii) Often a fake profile is created in the name of the victim and inaccurate and disparaging material is published see Applause Store Productions v Raphael [2008] EWHC 1781 (QB)

3. Misleading statements

The Full Court of the Federal Court in Jones v Australian Competition and Consumer Commission [2010] FCAFC 136 considered contempt of court charges where the accused was found guilty of deliberately breaching an interlocutory order restraining the appellant from promoting “quack” treatments for cancer and other disease on websites and Facebook profiles.

4. Mining for evidence

Searching for information on Facebook and Twitter by lawyers to obtain private information about parties has become common in the US, particularly in personal injury cases (see itnews – Facebook posts mined for court case evidence )

5. Restrictions on freedom to comment

There are strict rules on the use of social media before football matches in the UK and US to prevent personal comments about the integrity of officials and the exposure of team tactics. This is important considering the huge number of supporters. Real Madrid has 7 million fans on its Facebook page. The NFL‟s Twitter policy in the US prevents players from tweeting 90 minutes before kick-off and until they have met all post-match Current as at March 2012 media obligations. Players can be charged with improper conduct for violations of these restrictions.

6. Unauthorised access and impersonation

In Peter & March [2010] FamCA 151 the father accessed the mother‟s Facebook site which was protected from unauthorised access by using one of the mother‟s friends who had access to the site. The mother alleged that this was inappropriate and an invasion of privacy.

7. Use by the courts

(i) In Darcy & Cameroon (No 4) [2010] FamCA 351 Strickland J discussed orders made to remove material identifying the parties and the child and orders were made to prevent the mother from posting material relating to the case on her Facebook page.

(ii) Australia‟s attorneys-general considered suppression order provisions in May 2010 to include publishing on sites such as Facebook the name of an accused whose identity has been suppressed. The issue arose in the Kapunda murder trial.

8. Privacy

A complaint was made under the Broadcasting Act 1989 in New Zealand following a news item showing photographs of men who died in an Air Force helicopter crash and revealing parts of their Facebook pages. It was held by the Broadcasting Authority that the privacy standard did not apply to deceased individuals.

9. Social Media Policies

Issues have arisen in the US regarding employer‟s social media policies and infringed employees‟ rights under the National Labor Relations Act.

(i) In December 2009 the National Labor Relations Board issued an advice memorandum concerning the social media policy of Sears Holdings Corp. It was held not to infringe sections of the National Labor Relations Act by including a prohibition on disparagement of the company‟s executive leadership, employees or strategy.

(ii) In November 2010 the National Labor Relations Board considered restrictions by the American Medical Response of Connecticut Inc on employee blogging and social media communications a violation of section 7 of the National Labor Relations Act.