Social media – the good, the bad and the ugly

CYFOR recently presented at two social media seminars, one hosted by Taylors Solicitors and the HR Exchange and the other by Berg Solicitors. Aimed at HR and employment personnel, the events were well attended and back up the common view that companies don’t know what to do about social media in the workplace.

The title of this blog comes from the HR Exchange seminar and provides a methodical way to approach the topic….

The Good

Over the past few years, companies have started to integrate social media into their businesses to promote brands, advertise products and services, recruitment and to connect with prospects and clients.  One of the speakers at the HR Exchange, David Pollard from Touch, talked about recent research stating that 86% of FTSE 100 companies and 58% of job seekers now use social media for recruitment.  Only today I read an article published in the New York Law Journal which quoted that “2012 will mark the first time that online advertising spending will surpass print advertising spending in total dollars”.

The Bad

Although ‘the good’ aspects of social media are to be championed, the line between the use of social media for work and pleasure is becoming increasingly blurred.

So what are the risks of social media and what should employers be looking out for?:

• Discrimination, bullying and harassment
• Distrubution of sexist, racist or offensive material
• Disclosing confidential company information
• Loss of productivity
• Loss of reputation
• Privacy issues

Today it is not uncommon for employers and employees to enter into disputes over the use of social media and what is deemed ‘acceptable use’.  These cases will involve computers and mobile devices so handling this ‘evidence’ in the correct manner is key.  Even if the dispute is simply settled through an internal meeting and doesn’t progress to a tribunal or criminal investigation, preserving the digital evidence is important.

Not suprisingly, we would advise that a digital forensic expert is called in to image the computer or mobile device.  A mirror image of the digital evidence would be created and the data preserved.  This process would also limit business disruption as the devices would only be required for a short time and the imaging could take place covertly and out of hours.

An investigation of the image could then take place without altering any of the properties of the original computer or mobile phone, which could potentially damage the evidence.  The nature of the investigation would depend on what the company was trying to prove but typically a digital forensic expert can recover data from social networking communications, instant messenger chat histories, popular webmail applications, web browsing history, and peer-to-peer sites and online communications.

We would advise that prior to calling a digital forensic expert, the company also takes steps to preserve the data.  For example, isolating the device, not letting the IT department ‘take a quick look’, or switching the device on or off.

The Ugly

At the beginning of this year, the first ever constructive dismissal claim was made in the context of Linkedin usage – Flexman v BG Group.  In brief, BG Group claimed that Mr Flexman had posted confidential company information on his Linkedin account, despite Mr Flexman suggesting that this information was already in the public domain.  As a result Mr Flexman was dismissed and filed for unfair dismissal.  The hearing has been adjourned to 15th May this year and the outcome is eagerly awaited as it may prove a benchmark for future social media cases – to what extent will the tribunal employ existing protections and basic principles of law in assessing the dispute, rather than developing new principals to address the fact that it arises in the context of social media?

Other cases which highlight the risks of social media include Gosden v Lifeline Project Limited, Preece v JD Wetherspoons plc. and Benning v British Airways plc.

How should companies protect their business?

A social media policy – this is an internal document which should be drawn up by companies to make it clear what is acceptable and unacceptable with regards to social media use.

A recent ACAS research paper recommends, “All employers should have a [written] policy on internet/social media use…[which]…must set out clearly and explicitly the organisation’s expectations of and definitions of acceptable and unacceptable behaviour, and the consequences of violation.  This should be consistent with the disciplinary procedures and cross-refer to them….”

Social media policy considerations:

• What kind of usage is allowed for business?
• What kind of private use is not permissible?
• How should the business name be used and associated with?
• How will the employer monitor employee’s use of social media platforms?

A social media policy is a key way of limiting risks such as:

• Time theft
• Claims of unfair dismissal
• Claims of discrimination, harrassment and bullying
• Damage to reputation
• Breach of confidentiality
• Claims of defamation

…..after all, prevention is better than cure.