Do organisations require social media policies?

What is a Social Media Policy?

A Social Media Policy (SMP) is a document that supplements a contract of employment to be legally enforceable by an organisation on its employees.  The aim of an SMP is to clearly communicate what is acceptable conduct on social networking sites by an organisation’s employees and contractors, and what conduct is unacceptable and would make an employee liable to dismissal.

An SMP is distinct from an organisation’s Social Media Strategy (SMS) which is a high-level document that communicates how an organisation plans to participate in social media.

What risks can an SMP protect against?

By and large, the legal risks posed to organisations can be categorised into two (2) parts, internal and external.  An SMP can attempt to protect against the internal risks posed by those associated with the organisation.

The legal risk matrix of social media

An SMP can therefore address the following internal risks:

• Loss of confidential information;
• Breach of copyright;
• Defamation;
• False statements and/or misleading and deceptive conduct;
• The tort of passing off;
• Reputation risk;
• Statutory risks including:
  • Breaches of the Privacy Act;
  • Breach of continuous disclosure obligations in the case of listed public companies;
  • Discrimination;
  • Organisation- and industry-specific risks posed by the organisation’s operating environment.

The above risk matrix is by no means complete, as many of the risks are not easily segregated and cross boundaries.  A well considered SMP (and revised contracts of employment) should take these issues into consideration.

Is an SMP binding on an organisation’s staff?

The general rule is that an employer cannot regulate the after-hours conduct of its employees.  That said, if the conduct complained of is referable to the organisation, then a case can be made that it can. Therefore, an SMP can be binding on an organisation’s staff, provided that all reasonable attempts have been made to bring the SMP to their attention.

Drafting tips for SMPs

In drafting an SMP, there are three (3) key considerations which must be taken into account:

• The organisation’s Social Media Strategy (what it is that the organisation is doing or plans to do on social media sites);
• The subsequent social media risk matrix posed by the SMS;
• Any industry-specific risks posed to the organisation (dentists for example are prohibited from using testimonials to promote themselves);

The SMP development process should involve senior management to understand the risks, so as to make informed decisions to control them in order to reap the benefits of participation.

Organisations should also ensure that those staff that are involved in social media in an official capacity are aware of the legal risks of participation so that they can respond appropriately when the time comes.  Monitoring activity on social media is also critical to this strategy.

Why your organisation should have an SMP

Whether you like it or not, statistics show that your organisation’s staff are participating in social media.

If you would like to harness the benefits whilst controlling the risks, you need a well-thought through SMP.  Otherwise, it will be more difficult to control the activities of staff that are on social sites, regardless of whether they are engaged officially or not.

Further information

If you would like us to assist with social media law, please contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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