The article covers Social Media and the Law, two areas that are becoming an increasingly hot topic.

Based on the law suits involving social media in 2011, 2012 will see further developments and changes to many of the platforms that we have become so accustomed to.

It’s no surprise to discover that evidence presented in court is increasingly referencing social media, a notable trend in 2011. 

At a time whereby, increasingly, those not having profiles on social networking sites such as Facebook are considered to be in the minority, the potential that social media holds for lawyers who are on the look-out for incriminating evidence, in the form of a status update, picture or ‘check-in’, is vast. 

Reading about such cases suggests that this trend will no-doubt continue in 2012, as well as affect how courts respond to such evidence. The question of authenticity and reliability that pertains to evidence collected from social media, however, is now also subject to greater scrutiny. 

This, thankfully, is in response to the realisation of how easy impersonation can be online.   

The use of social media amongst children is always a topic of much debate, and when used during time as a student, it’s no different.

The legal issues surrounding the discipline that schools can impose on students for what they write about on social media are becoming more prevalent.  The issue of whether punishment would be in violation of freedom of speech rights is a subject of further debate. 

Regular readers of my blog will have seen my post in November 2011, which advocated the need for the implementation of a social media policy within the workplace, both for personal and commercial use of social media. 

It’s perhaps not surprising to read the many legal disputes between that of employers and employees over social media activity within the last year. 

The difficulty facing employers today is that, even if they do have a clear social media policy in place, and it is communicated to and made available to all staff, it does not mean that they will be free from the risk of successful Employment Tribunal claims.

According to one of our associates Pam Loch, Managing Partner at Loch Associates Employment Lawyers:

Two cases in 2011 highlighted the stark contrast in approach that Employment Tribunals can take when deciding whether an employee has been dismissed unfairly or not.  The case of Preece v JD Wetherspoons plc ET2104806/2010 shows that, where an employer has a clear social media policy in place, it can be fair to dismiss an employee who has made inappropriate comments about customers on Facebook. 

It was decided that the employer had been justified in their decision to dismiss the employee for gross misconduct as the comments she had made on her Facebook page breached the employer’s clear policies on e-mail, internet and social media use.

She continues:

In contrast, the case of Whitham v Club 24 Ltd (t/a Ventura) ET 1810462/2010 demonstrated that even when there is a social media policy in place, dismissal can still be unfair, unless the employer can show actual or serious risk of potential harm to the business. 

In this case, the employee had posted comments on Facebook after what appeared to be a difficult day at work. She had set her privacy settings so that it was only her ‘Facebook friends’ that could view her comments and not the public at large. However, her comments were seen by two of the employee’s managers who reported the comments.

The employer in this case was criticised for failing to understand their own disciplinary procedures and policies, failing to properly consider the employee’s mitigating factors (which included her exemplary record, personal circumstances at the time and her immediate apology) and failing to consider demoting the employee rather than dismissing her.

As Pam asserts:

These cases clearly show that an employer must ensure that, in all circumstances, they act reasonably and do not decide too quickly to dismiss an employee who has made negative comments on a social media or networking site.  What an employer needs to consider is the impact or potential impact of the comments on their reputation or customer relations as in these difficult economic times, safeguarding business relationships must be balanced with the duty to act fairly towards employees.”

Reminding us of the often lack of clarity, however, The National Labor Relations Board in the USA recently took legal action against employers responsible for dismissing staff based on their activity on social media. 

Disgruntled employees taking to social media to vent their unfavourable opinions on co-workers, were in many cases classified as efforts intended to improve the workplace environment on behalf of the employee, or rather “concerted activity” which federal labour laws protect.

An individual’s control over their personal likeness being used commercially could soon pose a threat to Facebook’s revenue generating “Sponsored Stories” and other similar services. The practise of promoting to the user the ads that their friends ‘like’, as well as listing their names, could be halted based on an individual’s claim to “right of publicity”. 

It’s likely that the terms of use of the service will be revised to waive these rights, however it remains to be seen how much this will unsettle this particular social media platform.

Another trend that we might see in 2012 is a common standard for privacy rules adopted across social networking platforms. Social networking platforms will no doubt follow Facebook, in the wake of the latter’s agreement to regular privacy audits for the next twenty years by the Federal Trade Commission in November of last year.

Overall, the social media revolution represents a fundamental shift in the way we communicate, and the value of the opportunities that it presents should not be underestimated. What we hope that this will highlight is the importance of implementing measures to protect your organisation and employees alike. 

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