Paper by Gavin Barnes

DIRECTOR

redchip lawyers Pty Ltd

Prepared for LEGAL WISE

SEMINAR 26 MAY 2011

PHONE: 07 3582 5055

FAX: 07 3852 2559

EMAIL: gavinb@redchip.com.au

WEBSITE: www.redchip.com.au

SOCIAL NETWORKING

NAVIGATING THE WORK PLACE

MINEFIELD

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INTRODUCTION

Social networking sites like Facebook, Myspace, Twitter and LinkedIn are

platforms on which people can socialise online, share information and connect

with each other. Users of such sites can build public or semi-public online profiles

and share content with other profiles to which they choose to share a connection.

Online social networking has seen rapid growth in recent years as the internet

and social media applications have become more accessible. Currently Facebook

has over 500 million active users1 and Twitter has over 175 million users2. A

significant number of individuals in Australia and around the world are members

of one or more social networks. Data from the Australian Government

Information Management Office3 indicates the percentage of Australians using

social networking sites increased from 29 per cent in 2008 to 36 per cent in 2009.

Furthermore, a global survey of lawyers4 showed a sharp rise in demand for

online networks designed exclusively for legal professionals. The survey data

revealed that more than 70 per cent of lawyers were members of an online social

network - up nearly 25 per cent on the previous year - with 30 per cent growth

reported among lawyers aged 46 and over.

Psychological Impact of Online Social Networking

The Australian Psychological Society conducted a survey5 investigating patterns in

online social networking and the social and psychological impact attaching to

them. A total of 1834 Australians responded to the survey. Of the young adults

aged 18-30 who completed the survey, 97% were accessing online social

networking sites. While much of the media attention on online social networking

had focused on young people’s use of those sites however, the survey found that

1 Facebook Statistics, <http://www.facebook.com/press/info.php?statistics>. 2 Twitter, <http://twitter.com/about>. 3 The Australian Government Information Management Office, ‘Australians’ use

and satisfaction with e-government services 2009’,

<http://www.finance.gov.au/publications/interacting-with-government-

2009/index.html>. 4 LexisNexis Martindale-Hubbell, ‘Networks for Counsel Study 2009’,

<http://www.leadernetworks.com/documents/Networks_for_Counsel_2009.pdf>. 5 The Australian Psychological Society Ltd, ‘The Social and Psychological Impact of

Online Social Networking’, APS National Psychology Week Survey 2010.

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81% of adults aged 31 to 50 years also reported using these sites.

A large number of participants (53%) felt that online social networking allowed

them to be in contact with people more regularly, and for 79% of participants it

helped them to keep in touch with people who live far away.

More than half of respondents aged 18-30 felt they would lose contact with many

of their friends if they stopped using online social networking. With the over 50

age group, only 26% was concerned about losing friendships.

When asked if they felt more confident socialising online than in person 54%

responded in the affirmative while 8% indicated that they felt they were treated

better online than in face-to-face relationships.

Past studies have suggested that online social networking may be particularly

helpful for those who are shy and less sociable as it provides an easier way for

them to form connections. This survey found that people using social networking

sites are more likely to be of the type that rate themselves as having moderate

levels of shyness and sociability, suggesting that they are individuals who are

likely to be competent socially.

BUSINESS RISKS

Misleading Conduct

Businesses that utilise social networking sites are responsible for all content

posted on those sites, including material that is posted by third parties and must

exercise control over the misleading material once it is brought to their attention.

In ACCC v Allergy Pathway Pty Ltd 6, the ACCC took court action in 2009

against Allergy Pathway Pty Ltd (Allergy Pathway) for making misleading and

deceptive statements about the ability of Allergy Pathway to identify, treat and

cure allergies. The Federal Court found that misleading and deceptive statements

had been made and ordered Allergy Pathway and its director to give undertakings

not to repeat the misleading and deceptive statements for a period of 3 years.

6 ACCC v Allergy Pathway Pty Ltd [2011] FCA 74.

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In 2010, ACCC brought another action alleging that Allergy Pathway and its

director breached the undertakings that they gave to the court. The alleged

statements in breach of the undertakings included testimonials and replies on the

company’s website, Facebook page, Twitter account and on Youtube.

The following testimonial was posted on Allergy Pathway’s Facebook wall:

‘Allergy Pathway is amazing. It has worked wonders for me in so many ways. I

had food allergies for as long as I can remember, avoiding seafood and shellfish

and even bread! After one treatment I could eat seafood with no noticeable

reaction … [name], Medical Practitioner’

The court found that a company which maintained a Facebook page was liable for

misleading testimonials posted on that page by users of the company’s products.

In making its finding, the court emphasised that liability for the publication of

misleading, deceptive or defamatory words is not limited to the original author of

the words.

Although Allergy Pathway was not the original author of the client testimonials

posted on its Facebook page, they had knowledge of the posting and they had the

necessary means to remove the posts but took no steps to remove the

testimonials from the social networking sites. Therefore Allergy Pathway had

published the testimonials and acquired responsibility for the material posted by

their customers.

Allergy Pathway and its director were each fined $7,500 for contempt of court.

The court also made orders for corrective advertising to be displayed at all Allergy

Pathway clinics, on Allergy Pathway’s Facebook and Twitter pages and to be

distributed to all of its' clients.

Internet Defamation

In May 2005, each of the States and Territories of Australia agreed to enact

uniform defamation laws which took effect from 1 January 20067. In Queensland,

7 New South Wales (Defamation Act 2005), Victoria (Defamation Act 2005),

Queensland (Defamation Act 2005), South Australia (Defamation Act 2005),

Western Australia (Defamation Act 2005), Tasmania (Defamation Act 2005) and

the Australian Capital Territory (Civil Law (Wrongs) Act 2002 as amended by the

Civil Law (Wrongs) Amendment Act 2006); and Northern Territory (Defamation

Act 2006).

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the Attorney-General and Minister for Justice, Linda Lavarch, announced in

November 2005 that the Defamation Act 2005 (Qld) was passed in Parliament in

accordance with the proposed uniform national laws8.

There is no statutory definition for defamation. At common law, the tort of

defamation consists of the communication or publication of material that

damages the reputation of another. The publication must be made to a person

other than the person defamed.

"Publication" is the communication of defamatory material of and concerning

another to some person other than the defamed. At common law the tort of

defamation is committed at the place of publication, that is, at the place where

the communication is received.

In the case of internet defamation the tort is committed in the place where the

material is downloaded. It is only when the material is available in

comprehensible form that damage to reputation is done.

In Dow Jones & Company v Gutnick9 the High Court found that publication of

online material occurs at the point when the information is downloaded by end-

users, not at the place of its upload. The court held that ‘in the case of material

on the internet, it is not available in comprehensible form until downloaded onto

the computer of a person who has used a web browser to pull the material from

the web server’10.

Gaudron J stated the publication of material damaging the reputation of the

person defamed is essential and ‘merely creating and making the material is

insufficient. The material has to be accessed or communicated in a jurisdiction

where the person defamed has a reputation’11.

Who can be sued?

Internet users may be sued in relation to material they write/publish themselves,

or if they re-publish/distribute material written by someone else. Internet Service

8 Justice and Attorney-General The Honourable Linda Lavarch, Ministerial Media

Statements, ‘Parliament Passes Landmark Defamation Laws’. 9 Dow Jones & Company v Gutnick (2002) 210 CLR 575. 10 Ibid at 44. 11 Ibid at 151.

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Providers (ISP) and Internet Content Hosts (ICH) may be sued in relation to

information published by a user on their network or web servers.

In June 2009, a Chicago apartment management company, Horizon Group,

brought a libel suit12 against a former tenant over a comment made on Twitter.

They claimed damages of $50,000 on the basis that the comments were

published throughout the world.

The Tweet posted was as follows: ‘Who said sleeping in a moldy apartment was

bad for you? Horizon realty thinks it’s okay.’

Horizon Group alleged the Tweet was false and defamatory resulting in the

reputation of the company being greatly damaged. Despite this, the proceedings

were dismissed as the judge felt the original Tweet was too vague to meet the

strict definition of libel.

Alternatively, in July 2008, the High Court in the UK ordered Grant Raphael to

pay damages for defamation in relation to a fake Facebook page he created about

Mr Matthew Firsht13. The fake profile included a genuine photo of Mr Firsht and a

mixture of true and false statements about private matters such as his date of

birth, sexual orientation and allegations regarding the ability of Mr Firsht and his

company to pay their debts.

Anonymous posters on the internet

The recent Western Australia Supreme Court case of Moir & Datamotion v

Gladman is an example of a successful defamation case involving a blogger

using a pseudonym. The case confirmed that companies may have grounds to

prosecute people who make anonymous defamatory comments online.

In January 2010, IT company Datamotion Asia Pacific Limited (Datamotion) and

its managing director Mr Ron Moir issued proceedings in relation to defamatory

material published about them on the internet forum HotCopper Australia

(HotCopper).

12 Horizon Group Management v Amanda Bonnen, Circuit Court of Cook County, Illinois, 2009L008675. 13 Applause Stores Productions Limited & Mathew Firsht v Grant Raphael [2008] EWHC 1781.

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A user posted defamatory comments on HotCopper about Datamotion and Mr

Moir. HotCopper refused to reveal the identity of the user due to its privacy and

confidentially policy.

The potential plaintiffs obtained court orders by consent against HotCopper’s

owner which required disclosure of information about the anonymous poster

under a preliminary discovery process.

The defendant Graeme Gladman was eventually found from the information

provided by HotCopper. The defendant agreed to resolve the defamation action

by paying a fine of $30,000, providing apologies and giving undertakings not to

repeat the defamatory publications.

Privacy

The Privacy Act 1988 (Cth)14 imposes information privacy principles (IPPs) on the

federal public sector and on private sector organisations. The IPPs set the

minimum standards for the collection and handling of personal information by

businesses and other private sector organisations.

If a social networking site is based in another country such as the USA,

companies might not have privacy rights under Australian law when using the

site. Also, the Privacy Act does not cover individuals acting in a personal capacity.

Therefore individuals posting information on social networking sites would usually

be exempt from the coverage of the Privacy Act15.

Information on such social networking sites is publicly available and anyone can

look at it including employers. However if an organisation that is covered by the

Privacy Act collects personal information from an individual’s social networking

site, then the organisation must comply with the National Privacy Principles that

set out how an organisation must handle personal information and the purpose

for which it can be used.

14 Privacy Act 1988 (Cth). 15 Australian Government – Office of the Australian Information Commissioner, Your Privacy Rights FAQs – Do I have rights under the Privacy Act when I use social networking sites? < http://www.privacy.gov.au/faq/individuals/sn-q3>.

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The following example is taken from the Australian Government is privacy

website16:

An Australian department store collects your personal details from your Facebook

page so that they can send you information about their latest sale. If the store is

covered by the Privacy Act, they will usually need to tell you who they are, how to

contact them and they can only use your information for the purpose which they

disclose to you.

In the case of Raphael v Firsht17 mentioned above, the High Court held that Mr

Raphael’s actions were also an invasion of privacy. However, there is no cause of

action for invasion of privacy or tort of privacy here in Australia.

Confidential information and customer data base

In the Australian case NP Generations v Feneley18, a rental property manager

kept a diary and address book containing the contact information of some of the

owners of the rental properties which she managed during the course of her

employment. After her employment was terminated, she took the diary with her,

began working for a competitor and made contact with eight clients of her former

employer.

The court held that where confidential information is entrusted to an employee for

a limited purpose, it can only be used for that purpose and no other. It is also a

breach of good faith and a breach of the equitable obligation to preserve the

confidence of an employer if an employee makes a copy of a list of customers of

the employer for use after their employment ends19. The list of names and

addresses were confided to the property manager for a specific and limited use,

namely to enable her to manage the appellant’s rental property business. The

property manager was ordered to deliver the address book to her former

employer.

16 Australian Government – Office of the Australian Information Commissioner, Your Privacy Rights FAQs, ‘Are Organisations allowed to use the personal information I post on social networking sites?’, <http://www.privacy.gov.au/faq/individuals/sn-q5>. 17 Applause Stores Productions Limited & Mathew Firsht v Grant Raphael [2008] EWHC 1781. 18 NP Generations Pty Ltd v Feneley (2001) 52 IPR 563. 19 Ibid at 19.

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Sites like Linkedln allow employees to upload their email address book into

LinkedIn and invite customers to ‘connect’. It follows that the email address book

uploaded onto LinkedIn may contain the employer’s confidential information in

the form of its customer database.

When the employee leaves the company, the client information is still retained on

LinkedIn. As a result, there could be loss of potential revenue, loss of confidential

client information and the original information may lose the quality of

confidentiality.

In the UK:

In the case of Hays Specialist Recruitment v Ions20, the High Court allowed

pre-action disclosure in relation to a possible claim against a former employee

who had uploaded work contacts to LinkedIn.

Mr Ions was employed by Hays for over 6 years as a ‘middle ranked’ recruitment

consultant. He specialised in placing training and similar personnel for a broad

range of professional, public sector and commercial clients21.

Hays claimed that Mr Ions has used confidential information concerning clients

and contacts copied while still he was still employed by Hays and breached the

restrictive covenants in his contract of employment.

During the course of employment and with the encouragement of his employer,

Hays, Mr Ions became a member of LinkedIn and uploaded information

concerning clients and applicants onto LinkedIn.

The judge considered that Hays had reasonable grounds for a claim against Mr

Ions arising from the fact that he uploaded client data to LinkedIn and the

subsequent use of those details in his competing business. The court said that

even if Hays had allowed the uploading of business contacts, it was likely to be

limited to using the data in the performance of his duties as an employee of Hays.

Mr Ions was ordered to disclose all documents, including invoices and emails,

evidencing his use of the LinkedIn contacts and any business obtained from

them.

20 Hays Specialist (Holdings) Ltd and Another v Ions and Another [2008] EWHC 745. 21 Ibid at 2.

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In the US:

In March 2010 the matter of TEKsystems v. Hammernick22 was commenced in

the United States District Court for the District of Minnesota. TEKsystems (‘TEK’),

an IT staffing firm alleged that former employees violated the non-competition,

non-solicitation and non-disclosure agreements entered into with TEK by

unlawfully communicating with former clients of TEK via LinkedIn.

The hearing and outcome will be known in August 2011.

The issue involved in this case is that sensitive information could be leaked by

government officials. For example, in the United States, two State Department

officials tweeted about a trip in which they led a trade delegation of Silicon Valley

executives to Syria.

According to a New York Times article23, their Twitter messages "raised heckles"

in the U.S. House of Congress and embarrassed the State Department, which

normally conducts its dealings with Syria--a country still classified by the

Americans as a "state sponsor for terrorism"--behind a veil of polite diplomacy.

The two officials had tweeted about, amongst other things, how they challenged a

Syrian communications minister to a cake-eating contest.

COPYRIGHT ISSUES

Copyright protects the original expression of ideas. Copyright protection in

Australia is free and automatically safeguards original works of art and literature,

music, films, sound recordings, broadcasts and computer programs being copied

and from certain other uses. Copyright owners have exclusive rights to:

• reproduce the work;

• communicate the work to the public (for example, via fax, email,

broadcasting, cable or the internet);

• to perform the work in public; and

• to make an adaptation.

The creator of the work is usually the first owner of copyright but there are

several exceptions. One important exception is that copyright in works created

22 TEKsystems, Inc. v. Hammernick et al., No 0:10-cv-00819. 23 The New York Times,’ Twitter Musings in Syria Elicit Groans in Washington’, <http://www.nytimes.com/2010/06/30/world/30diplo.html>.

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during the course of employment are owned by the employer and not the

employee.

Using social media content

Social networking sites allow users to personalise their profile pages by posting

photographs, logos, film clips, songs and quotations. Users of social networking

sites may infringe upon another person’s copyright if they post copyright material

without the permission of the copyright owner.

Facebook v Power Ventures24 is a lawsuit brought by Facebook alleging that

Power.com, a third party platform, collected user information from Facebook and

displayed it on their website. Facebook alleged this constituted infringement of

copyright and also asserted claims of both state and federal trademark

infringement.

Facebook allows third parties like Power.com to create applications that interact

with Facebook’s services through the Facebook Connect application. Third party

access is not permitted unless such access is through Facebook Connect.

Power.com is a website that enables its users to aggregate data about

themselves that is otherwise spread across various social networking sites and

messaging services including LinkedIn, Twitter, Myspace, AOL and Yahoo instant

messaging. Power.com intended and planned to enable users to access Facebook

profile data on the Power.com site.

Facebook and Power.com tried unsuccessfully to negotiate an arrangement

whereby Power.com could access Facebook’s site through the Facebook Connect

application. Facebook alleged that Power.com continued to scrape Facebook’s site

despite technological security measures to block such access.

The court held that Facebook does not have a copyright on user content which is

the information that Power.com sought to extract. However, if Power.com made a

copy of a user’s entire Facebook profile page in order to collect that user content,

such action may violate Facebook’s proprietary rights.

24 Facebook Inc v Power Ventures Inc., 91 U.S.P.Q.2d 1430.

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Facebook’s user agreement prohibits the downloading, scraping and distributing

of any content on the website, with the exception being that a user may

download his or her own content. However, not even this exception allows a user

to employ data mining, scraping or similar data gathering or extraction methods

as this would constitute unauthorised use.

The utilisation of Power.com by Facebook users exceeds their access rights

pursuant to the Terms of Use. When a Facebook user directs Power.com to access

Facebook, an unauthorised copy of the user’s profile page is created. The creation

of that unauthorised copy through the use of Power.com’s software may

constitute copyright infringement.

Infringement – Employer vicariously liable

Copyright is infringed if copyright material, or a substantial part of it, is used

without permission in one of the ways exclusively reserved to the copyright

owner. Employees may infringe copyright by uploading copyright material on the

company’s social networking site or company blog without first obtaining the

consent of the copyright owner. Employers could be vicariously liable for the

infringement of another person's copyright by their employees if the employee

was acting in the course of their employment.

Fair dealing defences under the Copyright Act 1968 (Cth)25 enable (in some

circumstances) the use of copyright material without the permission of the

copyright owner for one of the following purposes: criticism, review, news

reporting, parody or satire.

Factors that may be taken into account in working out whether a use is ‘fair’

include whether the person using the material is doing so for commercial

purposes and/or whether the work is available for sale. The mere fact that the

person using the material is not making a profit does not make it fair.

Potential reputation damage

One of the risks associated with the use of social media is the loss of reputation

brought about from the disclosure of confidential business or inappropriate

25 s 40, 41, 41A, 42, Copyright Act 1968 (Cth).

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information. In the 2009 Deloitte survey on ethics and workplace26, 74% of

employees said it is easy to damage a company’s reputation on social media.

In February 2011, a Singapore government staff member accidentally posted a

personal tweet containing an expletive on the government agency’s official

Twitter account27. The tweet said: ‘F*** you, don’t talk to me like that’. It was

taken down within minutes but it had already gone viral with retweets by other

Twitter users. In April 2011, a tweet: ‘omg. F*** you all. Seriously’ was

accidentally sent out on the Twitter account of Singapore’s national newspaper28

to more than 46,000 followers.

At a Domino’s franchise in North Carolina, two employees filmed and later posted

a prank video to Youtube showing unhygienic food preparation practices29. Within

a few days there were more than a million views on Youtube and a viral spread

on Twitter.

PERSONAL RISKS

Discrimination

The Fair Work Act 2009 (Cth) provides that employees and employers can bring

an ‘adverse action’ claim where a ‘workplace right’ has been breached or is

threatened to be breached.

A person has a workplace right if the person:

• has an entitlement under a workplace law or a workplace instrument such as

26 2009 Deloitte LLP Ethics & Workplace Survey, <http://www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/us_2009_ethics_workplace_survey_220509.pdf>. 27 The Straits Times (Singapore), ‘What’s that *bleep* doing in a govt tweet?’, <http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_639142.html>. 28 Singapore Straits Times, ‘Vulgar tweet sent to ST followers by mistake’,< http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_652162.html>. 29 The Telegraph (UK), ‘Dominos Pizza defends reputation on Twitter after Youtube video shows employees abusing food’, <http://www.telegraph.co.uk/news/worldnews/northamerica/usa/5164216/Dominos-Pizza-defends-reputation-on-Twitter-after-YouTube-video-shows-employees-abusing-food.html>.

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an award or enterprise agreement; or

• is able to initiate a proceeding under a workplace law or workplace

instrument; or

• is able to make a complaint or inquiry in relation to their employment.

Section 342 of the Fair Work Act sets out circumstances in which a person takes

adverse action against another person. In the case of an employer against an

employee, adverse action includes dismissing, injuring or discriminating against

an employee.

In the situation of a prospective employer, adverse action is taken when a

prospective employer refuses to employ a prospective employee or discriminates

against a prospective employee on the terms and conditions contained in the

offer of employment.

Section 351 of the Fair Work Act provides that employers are prohibited from

taking adverse action against an employee (or prospective employee) because of

that person’s race, colour, sex, sexual preference, age, physical or mental

disability, marital status, family or carer’s responsibilities, pregnancy, religion,

political opinion, national extraction or social origin.

An employer can only do so when the action is:

• not unlawful under any anti-discrimination law in force in the place where the

action is taken; or

• taken because of the inherent requirements of the particular position

concerned; or

• in accordance with doctrines, tenets, beliefs or teachings of a particular

religion or creed.

Employers can gain access to a variety of personal information of employees

unrelated to their employment duties such as their age, ethnicity, sexual

preferences, religious beliefs or marital status. If an employer relies on this

information to treat an existing or prospective employee unfavourably then they

may have breached the Fair Work Act.

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Employment – unfair dismissal

In a recent unfair dismissal claim30, Fair Work Australia found that an employer,

Escape Hair Design, unfairly dismissed an employee, Ms Fitzgerald, after she

posted a negative comment about her employer on Facebook.

The Commissioner held that Facebook comments may impact the employer’s

trust and confidence in the employee, even if posted out of work hours. The

factors that were taken into consideration include whether the employer was

named, who could see the comments, how long the comments were posted and if

the comments would adversely affect the hairdressing industry or the employer’s

business specifically.

In this case the Commissioner found that while the comments were frivolous they

did not provide a valid reason for dismissal because the postings were not

detrimental to the business and the employer had not raised the comments with

the employee at the time they were made.

It may also be argued that employers or managers are being discriminatory if

they accept some friend requests and not others. In the US it has been shown

that lawyers cannot be friends of judges on Facebook but they can be members

of their fan pages31.

Cyberbullying

The Workplace Health and Safety Act 1995 (Qld)32 at section 28 states that

employers have the obligation to ensure the health and safety of their employees

in the workplace and that those employees are not exposed to risks to their

health and safety.

30 Miss Sally-Anne Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA 735. 31 The New York Times, ‘For judges on facebook, friendship has limits’, <http://www.nytimes.com/2009/12/11/us/11judges.html>. 32 Workplace Health and Safety Act 1995 (Qld).

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The Queensland Government33 states that employers must identify and manage

exposure to the risk of death, injury or illness created by workplace harassment,

including bullying.

Cyberbullying is the use of information and communication technologies to:

support deliberate, repeated and hostile behaviour by an individual or group that

is intended to harm others.

Cyberbullying techniques use modern communication technology to:

(a) send derogatory or threatening messages directly to the victim or

indirectly to others; and

(b) forward personal and confidential communication and/or images of the

victim for others to see; and

(c) to publicly post denigrating messages34.

A survey was conducted of a sample group of 103 randomly selected members of

the Australian Manufacturing Worker’s Union investigating the prevalence and

methods of bullying of males at work. The results showed that 34% of the

respondents were bullied face-to face, and 10.7% were cyberbullied.

The results suggest that negative acts via technology are emerging alongside

those enacted face-to-face in the workplace and may represent the new form of

bullying, though to a much more limited extent.

ACCESS OF WORK – THE POSITIVE ASPECTS

University of Melbourne study

According to a study conducted by Dr Brent Coker from the University of

Melbourne35, surfing the internet for non-work purposes during office hours

increases productivity.

33 Workplace Health and Safety Queensland Department of Justice and Attorney-General, ‘Bullying and Harassment in Workplaces’, < http://www.deir.qld.gov.au/workplace/publications/safe/apr10/bullyinginworkplace/index.htm>. 34 Privitera, C., & Campbell, M.A. (2009) ‘Cyberbullying: The new face of workplace bullying?’ Cyberpsychology and Behaviour, 12(4), pp. 395-400. 35 University of Melbourne Media Release, ‘Freedom to surf: workers more productive if allowed to use the internet for leisure’,<http://uninews.unimelb.edu.au/news/5750/>.

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Workplace internet leisure browsing or WILB allows workers to rest their mind by

taking a short break leading to a higher total net concentration for a days' work

and. as a result, increases productivity.

In the study of 300 workers, 70% of the people who use the internet at work

engage in WILB. Employees who do surf the Internet for non-work purposes -

within a reasonable limit of less than 20% of their total time in the office - are

more productive by about 9% as against those who do not.

Manpower Survey

In 2010, Manpower Inc. (NYSE:MAN)36 surveyed over 34,000 employers in 35

countries and territories intending to gauge employer attitudes toward the use of

social media in the workplace.

Nearly six out of ten employers identified some benefits associated with social

networking sites including brand building (20%); the fostering of collaboration

and communication (19%); new talent recruitment (15%); candidate assessment

(13%); and professional development of employees (13%).

HOW DO WE MANAGE THE RISKS

Technology Use Policies

More from the Manpower Survey

63% of employers with social media policies in place indicated that these policies

were often effective in helping avoid productivity loss and 33% indicated that it

was effective in helping protect intellectual property and other proprietary

information.

Commonwealth Bank Social Media Policy37

36 Manpower Inc. (NYSE:MAN), ‘Employer Perspective on Social Networking: Global Key Findings’, <http://www.manpower.com.cn/resource/SurveyReport/social_networking_key_EN.pdf>. 37 Charis Palmer, ‘CBA’s Facebook Face-off’, <http://www.businessspectator.com.au/bs.nsf/Article/CBA-Facebook-Twitter-social-media-pd20110203-DPW35?opendocument>.

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The Commonwealth Bank recently implemented a social media policy regulating

its employees’ use of social media channels including social networks,

video/photo sharing sites, wikis online forums and any other website that

facilitate the publishing of user generated content.

The policy includes a clause stating that employees should notify their manager if

they become aware of any inappropriate or disparaging content posted by others

including non-employees.

Although this policy does not form part of the Bank’s employment contract,

failure to comply with the policy may result in disciplinary action being taken

against the employee which may ultimately result in their employment being

terminated.

The Bank received much media attention and criticism following the release of its

social media policy. The Finance Sector Union (FSU) met with the Bank to discuss

its concerns with the Bank’s social media policy. The FSU said the policy

misrepresents employees' workplace rights in that it does not acknowledge the

statutory rights of employees under the Fair Work Act 2009 and equal

opportunity legislation.

The Bank has since revised its policy and now employees risk dismissal only in

serious cases.

What should be considered when drafting a policy?

1. Review existing policies to determine if they address the use of social

networking sites by employees.

2. Determine what type of use of social networking is appropriate for the

employer’s business.

3. Determine the reach of the policy.

4. Determine how the employer will monitor employee’s use of social

networking sites at home and at work.

The employer will have difficulty relying upon the policy to sanction an employee

if it is not consistently and uniformly policed and applied.

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Coca-Cola Company Online Social Media Policy38

Coca-Cola provides a good example of a social media policy. It is only three

pages long and offers common sense guidelines for its employees. These

guidelines include:

1. Transparency in every social media engagement. The company does not

condone manipulating the social media flow by creating fake destinations

and posts designed to mislead followers and control a conversation.

2. Protection of the consumer’s privacy. The company should be

conscientious regarding any Personally Identifiable Information that they

collect, store or use.

3. Respect of copyrights, trademarks, rights of publicity and other third-party

rights in the online social media space including with regard to user-

generated content.

4. Responsibility in the use of technology. They will not associate the

company with any organisations or websites that deploy the use of

excessive tracking software, adware or spyware.

5. Utilization of best practices, listening to the online community and

compliance with applicable regulations to ensure that these online social

media principles remain current and reflect the most up-to-date and

appropriate standards of behaviour.

Coke also outlines “10 principles to guide how online spokespeople should

represent the company” that everyone should duplicate:

1. Be Certified in the Social Media Certification Program.

2. Follow our Code of Business Conduct and all other Company policies.

3. Be mindful that you are representing the Company.

4. Fully disclose your affiliation with the Company.

5. Keep records.

6. When in doubt, do not post.

7. Give credit where credit is due and don’t violate others’ rights.

8. Be responsible to your work.

9. Remember that your local posts can have global significance.

10. Know that the Internet is permanent.

38 Coca-Cola Social Media Principles, <http://www.thecoca-colacompany.com/socialmedia/>.

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Block v Not Block

In the 2010 Deloitte ethics and workplace survey39, 40% of executives said their

company does not allow access to online social network sites from the workplace.

According to a newspoll survey40 of more than 800 Australian workers

commissioned by Symantec, 73% of Australian workers are accessing social

networking sites. Of workplaces that did not officially allow workers to look at

social networking sites during work hours the survey returned the result of 48%.

While 24% of these workers access social networking sites during work hours,

just under a third of these do so without approval from their employers.

Many of those surveyed engaged in risky online behaviour with 20% of the

respondents admitting to have posted confidential information on a social

networking site and 25% have accepted friend requests from someone they did

not know.

Companies can use firewalls to limit access of Facebook functions to ‘read-only’.

With a firewall, organisations have greater control over what applications their

employees can access on Facebook and can apply "read-only" Facebook access to

certain staff members.

There is some debate on whether employers should block employee’s access to

social networking sites. In a 2008 survey41, it was found that when given the

choice between two similar jobs where one employer blocked access to social

networking sites and the other did not, 46% would choose the employer that

allowed access to these sites.

According to Facebook42, there are currently more than 250 million active users

accessing Facebook through their mobile devices. People who use Facebook on

their mobile devices are twice as active on Facebook as compared to non-mobile

users.

39 2010 Deloitte LLP Ethics & Workplace Survey, <http://www.deloitte.com/view/en_US/us/About/Ethics-Independence/8aa3cb51ed812210VgnVCM100000ba42f00aRCRD.htm>. 40 Symantec Press Release, ‘Australian Workers Embrace Social Networking Despite Falling Victim to Cybercriminals’, http://www.symantec.com/en/au/about/news/release/article.jsp?prid=20101209_01. 41 Deacons’ Social Networking Survy 2008. 42Facebook Statistics, <http://www.facebook.com/press/info.php?statistics>.

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Therefore it seems that even if employers do implement measures to block

access, the prevalence of smartphones and the easy access of social networking

sites on these devices would make the employer’s efforts ineffectual.

Monitor online reputation

There are Websites like Google Alerts43 and Tweetbeep44 which can assist

companies in monitoring their online reputation. By adding the company name to

such online tools, companies can be alerted when material is posted online in

relation to their company.

Monitoring employee’s use

Researchers from Swinburne University of Technology in Melbourne are working

with software company Mailguard to create a program that not only monitors the

internet use of employees but also calculates the average use for departments

and particular occupations45.

Education and awareness is the key

Businesses should develop a clear social media policy for employees providing

guidelines on safe practices on social networking sites and stating what can and

cannot be posted or shared on social networking sites.

The social media policy should establish clear procedures to follow when a

violation is discovered. It is important that the policy states what the

consequences of violating the policy will be.

Employers should conduct ongoing social media awareness training for employees

to educate and remind them about internet safety, security and threats on social

networking sites.

Employees should also be given a hard-copy of the company’s social media policy

to sign, acknowledging that they have read and accepted the policy.

43 Google Alert, http://www.google.com/alerts. 44 Tweetbeep, http://tweetbeep.com/. 45 The Age, ‘Bosses switch on antisocial network’,<

http://www.theage.com.au/executive-style/management/bosses-switch-on-

antisocial-network-20110302-1bdv6.html>.

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