Menu

The social media trap: don’t blur the lines between work and play

Print publication

03/06/2015

We live in a revolutionary new world of mass engagement in social media. Many have embraced sensibly the opportunities that such open communication can bring but there remain some users that ignore social and workplace etiquette online. Such ignorance, whether intentional or not, can cause problems for businesses.

Technology is developing rapidly and is blurring the line between personal and business communications. Despite the widespread introduction of social media policies, employees can often think nothing of posting online comments about their colleagues and work issues. Social media platforms encourage a more relaxed approach to communication, lulling people into conversations in which it is easy to let slip information about work – however inadvertently.

While there is a growing awareness among social media users of the effects of libelling or harassing others online, libel and damage to reputation aren’t the only business concerns arising from social media usage.

An employee’s inadvertent comments online can also reveal seemingly unimportant information which might later prove to be significant. For example, such comments might amount to evidence required to prove a claim and the author employee might well find themselves dragged into a full scale eDisclosure (1) operation. This could well involve solicitors having to work their way through the information on that employee’s personal electronic devices.

For employees involved in court proceedings, a request for ‘e-Disclosure’ can come as a shock especially if presented with a formal request to hand over their mobile, blackberry or laptop for review. Many employees – including directors and business owners – do not realise what relevance their personal communications could have to a work dispute. There are however, many ways that a personal tweet or text could amount to important evidence – just take a look at examples in the box at the end of this article.

And yes, it can be potentially uncomfortable for employees to hand over their private correspondence. Technological advances mean that software can be used to filter documents to reduce the number of personal documents that the solicitors have to review. However, it is true to say that solicitors do sometimes come across insalubrious documents that the creator would almost certainly prefer not to have shared.

So how can businesses protect themselves and their employees from the risks of ill advised social media posts?

Tips for businesses

  • Update (or introduce) appropriate workplace policies such as a social media and communications policies.
  • Implement those working policies by thorough regular training.
  • Undertake regular reviews of the policies: technology is changing rapidly and new technologies bring different risks. Ensure someone in the business keeps themselves informed and has responsibility to help the business adapt its policies as appropriate.

Train staff regularly to ensure they understand that :

– social media should be used responsibly – even private posts can potentially affect their employers’ business
– it’s important to keep work and personal communications separate where possible;
– their social media posts might be disclosable in later court proceedings if they are relevant to work disputes. This might lead to solicitors requesting access to their electronic devices such as their laptop and smart phone;
– if a dispute does arise, the employer has a duty to preserve all the evidence. Deleting eDocuments is a bad idea – a computer expert will still be able to find evidence of the eDocument on the electronic device – and the employee will then have to explain why the original was deleted.

Tips for employees

  • Breach of company policies can lead to warnings and potentially dismissal. Read and adhere to your work policies. If there’s something in the policy that no longer works or is inappropriate – speak up and help your employer to update the policy;
  • Take care with what content you post during work time and where possible, avoid all comment on work issues – at the very least in so far online comments are concerned;
  • All your communications if relevant to a work dispute, however made, could end up as evidence in court proceedings as part of the obligation to disclose documents.

A postscript on the process of Disclosure
When a party chooses to resolve a dispute in the courts, the litigation process will normally involve disclosing documents relevant to the dispute to the other party. A party’s duty to disclose such documents is onerous.

‘Documents’ for the purposes of Disclosure has a wide definition. It includes electronic documents (e-documents) such as texts, blogs, tweets, posts and all related metadata – whether or not they were intended to be personal. The amount of electronically stored information (ESI) potentially relevant to a dispute can be surprisingly high and can span both work and personal documents. With the huge growth in the use of electronic devices, it is increasingly likely that relevant e-documents will be found in litigants’ and their witnesses’ personal as well as work communications.

If you want to read more about the process of disclosure, click here for a summary.

If you would like a copy of our checklist for directors ‘Disclosure Duties and preserving documentary evidence at the start of a dispute’, please email Gwendoline Davies.

Why might personal e-documents be relevant to a work dispute? Some examples…
People with little experience of court disputes often do not understand why it is important to review all potentially relevant documents – including private documents and those on their private devices. Here are some examples of responses to solicitors’ requests for access to documents – and explanations as to why the documents might be relevant.