dma White Paper Staff Use of Social Media Policy Legal Dimension Published by DMA Social Media Council Second Edition we are the

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1 dma we are the White Paper Staff Use of Social Media Policy Legal Dimension Published by DMA Social Media Council Second Edition

2 Contents Acknowledgements 3 Introduction 4 A brief background to social media 5 Common problems with staff use of social media 6 But, before you act, review the situation 9 What should my organisation do if it doesn t have a social media policy 10 Developing a social media policy 11 2

3 Acknowledgements The DMA would like to thank Adam Paulisick of Qriously, Nicola Doran of Osborne Clarke solicitors and the Social Media Council for their contribution to this document. All rights reserved The Direct Marketing Association (UK) Limited No part of this publication may be reproduced without the written permission of The Direct Marketing Association (UK) Limited 3

4 Introduction I am a member of your staff. But I probably have a Facebook account, or an account on some other social network. I might also be a blogger; perhaps even someone who uses Twitter or one of many online products, apps or services that help me publish my opinions, organise my life, and store memories, review products, or network. I probably have a company phone or laptop that I use regularly to do so, even if only in off-hours. I wonder: can I be fired for promoting the company? Surely not. You would want me to share my expertise with everyone, wouldn t you? You can t tell me what to say in my own time, can you? These questions are just a starting point with today s 21st century workforce. Now, the better question: Is your organisation prepared to handle cases where your staff do abuse social media? Does it have a policy? What are the legal implications, and how can your organisation avoid having to think reactively about damaging situations? Your organisation can no longer avoid the conversation with staff about how their online activity reflects on the brand. This paper will outline issues that you may need to address at the organisational level within your policies, and provides enough background to start or evolve the conversation with staff if it s not already underway. An interesting starting point is to understand, and clearly state to your staff that what is illegal offline is, in almost all cases, also illegal online. While we won t be able to cover all of these topics in a single paper, your social media policy should consider defamation, libel, discrimination, obscenity, harassment, data protection, trade descriptions, IP rights, brand reputation and confidentiality of sensitive business information, as related to today s social media behaviour. Note: The DMA Social Media Council strongly encourages organisations to build guidance policies that focus on what content is being created, rather than the tools used to create it, as these tools are constantly evolving and may quickly make any guidelines obsolete. 4

5 A brief background to social media The term social media covers a vast range of software applications, including social networking sites (e.g. Facebook, MySpace and Bebo), blogging applications (e.g. Blogger and WordPress), micro-blogging (e.g. Twitter), multimedia sharing and networking applications (e.g. YouTube, Flickr and Skype), information sharing sites (e.g. Wikipedia), review and opinion sites (e.g. Google Answers, Yahoo! Answers), forums (e.g. Mumsnet, Digital Spy, ivillage) and even dating sites. This list does not even begin to cover the whole range of ways in which people share and interact online, but it is important that we start by establishing how broad a staff member s use of such applications may be. 5

6 Common problems with staff use of social media Perhaps the best place to start, independent of an individual s specific use of social media, is to identify common actions that might lead an organisation to take notice. Although not an all-inclusive list, the following should be noted: Staff member does not make it clear that this is a personal opinion as opposed to a company policy Staff member shares confidential information in the public domain. Employment contracts should be reviewed to ensure they specifically address this issue. Staff member publishes messages that are discriminatory Staff member insults or speaks poorly of a competitor Staff member presents him- or herself in an embarrassing way, or in a manner that would be considered offensive Staff member posts personal details (including text, image or video) of a fellow worker or organisation s facility without permission, potentially in breach of data protection legislation. Training on data protection should be provided to ensure employees understand it is not acceptable to disclose personal data relating to colleagues Staff member promotes, shares or discusses a product, or content related to their responsibilities or the function of the business, without sign-off. Staff members use of social media results in a loss of productivity. The parameters of the use of such sites at work should be clearly prescribed. Employers are usually vicariously liable for acts of discrimination by their employees. While you may argue that the employee was not acting in the course of their employment, the courts apply this concept very widely and the fact that the offending act took place while an employee was not physically at work may not defeat any claim if the actions are still connected to work in some sense. Employers may now also be liable for a failure to prevent discrimination of employees by other third parties (such as clients, suppliers or contractors). A two strikes and you re out rule applies to third-party harassment liability (i.e. you will be liable for third-party harassment if an employee has been subjected to harassment on two previous occasions). Your defence to discrimination by employees or third parties is to have taken all reasonable steps to prevent the harassment. Appropriate policies and training should therefore clearly state that online behaviour, even outside the workplace, should conform to appropriate standards and that any discriminatory action will result in disciplinary action. Supplier/service agreements should state that any discriminatory behaviour towards staff will not be tolerated and reporting procedures should be in place for staff with concerns regarding harassment. Please find below (thanks to CareerBuilder) a short history of notable firings for or related to Facebook: October 31, 2008: A group of thirteen cabin crew staff have been sacked by Virgin Atlantic after criticising the airline s safety standards and calling passengers chavs on Facebook. According to BBC News, a spokesman for the airline said that there was no justification for Facebook to be used as a sounding board for staff of any company to criticise the very passengers who ultimately pay their salaries. February 26, 2009: A teenage office worker from Clacton-on-Sea, Essex, was fired for calling her job boring. According to The Daily Mail, Kimberley Swann posted comments like First day at work. Omg (oh my god)!! So dull!! and All I do is shred holepunch and scan paper!!! [sic]. Swann was canned after her boss discovered the comments. March 29, 2009: A 27-year-old prison warden, who worked at HMP Leicester, was fired for making friends with 13 criminals on Facebook. There were photos on his profile showing him with a criminal Facebook-friend, and investigations also proved that he had phoned some of his criminal Facebook-friends. April 27, 2009: A Swiss insurance worker was let go after calling in sick, and then logging into Facebook on her sick day. Reuters reported that the women said she had a migraine and called out of work because the light from a computer would bother her and she needed to lie in a dark room. When her employer caught her surfing Facebook, it was presumed that she was indeed well enough to sit in front of a computer, and she was let go. 6

7 August 14, 2009: A woman, known only as Lindsay, was fired for insulting her boss on Facebook. She called him a total pervy w****r, but forgot that she had added him as a friend and he could read her status update. As a consequence, he responded: Firstly, don t flatter yourself. Secondly, you ve worked here 5 months and didn t work out that I m gay? Thirdly, that s**t stuff is called your job [...]. He then told her right there on Facebook not to bother coming back to work. March 19, 2010: A TUI Travel call centre agent was sacked after calling a colleague a brown-nosing cow on Facebook. According to The Mirror, TUI said: Our policy states staff should not post comments that could be regarded as bullying, harassment or discrimination against employees. 26-year-old Emma Short was then fired for breaching company internet policy. March 26, 2010: Although employers should not trawl through their employees Facebook pages for evidence that they are being dishonest about issues such as sickness absence, it is legitimate for them to use such evidence if it comes to light. Mrs Gill, a customer services representative and amateur model, was signed off sick for two months following minor surgery. During this period, entries were made on her Facebook page regarding a trip to London fashion week and YouTube entries of her walking down a catwalk were found by a colleague and forwarded to management. The Tribunal gave her claim for unfair dismissal short shrift and her dismissal for gross misconduct was seen as fair. April 19, 2010: Adam Webb, the web campaign organiser for Liberal Democrats candidate Colin Eldridge, was sacked for leaving obscene comments about religion on Facebook. He responded to an article about the rise of creationist theory in education by posting a request for all religious people to just f**k off. He also attached a link to an article saying certain people should be banned from breeding, including vile women with too many kids. May 17, 2010: Ashley Johnson, a waitress from North Carolina, was fired from her job at a Brixx pizzeria after posting a negative comment about two of her customers. Johnson called the customers who left her a $5 tip after sitting at their table for three hours cheap. Though she did not mention the names of the customers, Johnson did include the name of the pizzeria in her post. A few days later, management called her to tell her she was fired for violating the restaurant s social media policy. June 10, 2010: Five California nurses were terminated after it was discovered that they were discussing patient cases on the site. The situation was investigated for weeks, by both the nurses employer (Tri City Medical Center in San Diego) and the California Department of Health, before the nurses were fired for allegedly violating privacy laws. August 19, 2010: Simone Cox, a care assistant from Bentley, Doncaster, was fired for posting insults about the elderly residents she was supposed to be caring for. The owner of the care home said the firm was shocked and appalled by the comments about residents, many of whom suffer dementia. 1 January 18, 2011: Miss Preece, a manager at a Wetherspoons pub, was fired for gross misconduct after she made inappropriate comments about two of her customers who had verbally abused and threatened her. The comments were made on her private Facebook page but while she was at work. She was found to be in breach of the employer s and internet policy, which specifically referred to employees use of social media while at work. February 25, 2011: Mr Lerwill, football historian to Aston Villa FC, posted a number of inappropriate comments from his home computer on an unofficial fan forum following criticisms of an article fans assumed he had written. His dismissal was found to be unfair as there he had not been given any previous formal warnings and there was no guidance for him in any policy or procedure or his contract that would put him on notice that comments on a public message board could result in disciplinary proceedings and dismissal ways to get fired for Facebook : CareerBuilder.co.uk 7

8 Courtesy of FastCompany 2, a few visual examples of how micro-blogging (e.g. Twitter) can lead to legal issues: 2 8

9 But, before you act, review the situation So where might a line manager or HR department start if they believe that a staff member made an inappropriate posting or potentially caused some form of damage to the business through use of social media? They should consider taking the following key steps: Document the incident through a screen capture, in which the URL should be visible and the quality should make the message, image or other example of misconduct easy to review Evaluate the evidence that the staff member was in fact the person who posted or published the content, or potentially had ownership/control of the domain on which the content was published Evaluate whether the content is protected by law: examples might include unsafe working conditions, human rights violations or other relevant topics Review your organisation s social media policies and, if none exists, consider speaking with your usual HR legal advisers to see whether other policies that are already in place cover the medium or manner in which the staff member conducted him- or herself. 9

10 What should my organisation do if it doesn t have a social media policy Even if your organisation does not have a social media policy today, here are a few common guidelines to distribute to your staff members while you formulate a stance. Treat social media messages in the same way as you would treat a message sent from a organisation s address Do not try to mask your social media activity from the organisation you are working for differently compared with its visibility to the average public viewer Avoid references to the organisation you are working for, colleagues or other sensitive information at all times without express written permission Never assume it is OK to use social media while on contracted hours unless specifically discussed Never assume it is OK to be active on social media from a organisation s device without specific permission Do not use the organisation s resources to blog, write or otherwise engage in activities you would consider personal. Equally do not use personal social media sites to blog, write or otherwise engage in activities you would consider connected with your employment 10

11 Developing a social media policy Does every organisation already have a social media policy? An employee services firm, Manpower, conducted a study in early 2010 whose results showed that only 11% of companies in EMEA had a policy, compared with 29% in the US. 3 Although not surprising, the DMA (UK) would like to encourage all of its members to consider the risk of not having such a policy. So, what are the key elements of a social media policy? Here are a few important aspects and tips: Define social media. Again, there is no reason to name more than a few example sites for each category (e.g. video, pictures, written text, ratings, etc.), but it is only fair to try to explain to your employees what the focus of your policy is about. Consider a definition that also specifically references the creation, distribution or amplification of content. As a starting point for ideas, you might review or to familiarise yourself with all of the different varieties of content. Be specific in terms of who owns and is responsible for social media content relating to the organisation. Also, be specific about who owns the content created in the case of a departure or change in structure or ownership of the organisation. For example, provide that any contacts or opportunities gained through social media marketing during the course of working belong to the company. Be specific about whose responsibility it is to handle customer complaints or service, present information to a public audience, conduct research and a variety of other ways in which social media may be leveraged within the organisation. Establishing such direction will limit the assumption that there is no corporate responsibility. If you are willing to expand this list to the broader staff members, then you may consider looking at a policy such as Wells Fargo: Make it clear that the sharing of organisational information without the express permission of the business is not welcome. It is important to reinforce the notion that it is unacceptable to share, transmit or otherwise make external any content relating to the business, even within a password-protected or otherwise secure site. Although a site may clearly appear secure, the informal nature of the administration of external sites may present unnecessary risk to the organisation. Present an option within the policy for staff members to be trained and certified in the appropriate use of social media. Use may include, but is not limited to, customer service, marketing, PR or other core functions of the business. Include a section on employee engagement in addition to outlining who is responsible. The following policies have examples worth looking at when developing your own policy Intel When You Engage Emerging platforms for online collaboration are fundamentally changing the way we work, offering new ways to engage with customers, colleagues and the world at large. It s a new model for interaction, and we believe social computing can help you to build stronger, more successful business relationships. And it s a way for you to take part in global conversations related to the work we are doing at Intel and the things we care about. If you participate in social media, please follow these guiding principles: Stick to your area of expertise and provide unique, individual perspectives on what s going on at Intel and in the world. Post meaningful, respectful comments in other words, no spam and no remarks that are off-topic or offensive. Always pause and think before posting. That said, reply to comments in a timely manner, when a response is appropriate. Respect proprietary information and content, and confidentiality. When disagreeing with others opinions, keep it appropriate and polite. Know and follow the Intel Code of Conduct and the Intel Privacy Policy. Define common sense. While most people will respect normal boundaries of acceptable behaviour, it is important to clearly identify certain issues that will be considered inappropriate. A staff member should stay clear of current or rumoured legal involvement of the business, libellous or offensive content, confidential information, adult content, mention of any illegal substance use, or anything else of relevance to the business in their social media activity. 3 Employer Perspectives On Social Networking: Global Key Findings: A Manpower Survey January Social_Networking_Survey.pdf 11

12 8. Make sure that you clarify that professional and personal social media pages should be kept separate. However, any policy applies to both professional and personal use of social media used during your work. 9. Ensure that the policy states that statements on social media sites which are discriminatory, bring the name of your organisation into disrepute or are inappropriate, may result in disciplinary action including dismissal. It should also be clear that use of social media sites even outside the workplace must adhere to these standards. 10. Staff members should clearly identify when the opinion is of a personal nature; i.e. although I work for the DMA (UK), these views are my own. 11. Staff members must get express permission to use any trademarks or logos belonging to the organisation prior to posting. 12. Staff members agree to follow all copyright, privacy and other applicable laws. 13. Identify who employees should speak to if they have any queries or concerns. A lengthy list of social media policy examples may be found here: It is also useful to ensure that breach of any social media/internet use policy is included in your organisation s disciplinary policy as part of a non-exhaustive list of actions potentially amounting to gross misconduct. Openforum has presented a great case for policies from which you may want to take ideas 4. You must not copy directly from the above examples, but rather use them as a source of ideas for developing your organisation s own policy. While each organisation will clearly require a unique set of guidelines based on their industry, culture and risk, we hope that the above tips provide a helpful starting point. You should consult with your organisation s usual HR legal advisers when developing a social media policy as you will need to ensure that it links in with your existing HR policies and procedures and staff training. The DMA (UK) s Legal Department is happy to provide general advice and guidance. 4 Article 3 Great Social Media Policies to Steal From 12