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Twitter case highlights need for rigorous social media policies

Out-Law Analysis | 01 Apr 2019 | 9:55 am | 3 min. read

ANALYSIS: A dispute over the dismissal of a government employee over her activity on Twitter heard by the Australian High Court last week should remind companies to implement social media policies that are clear but that don't restrict freedom of speech.

Though the case concerned laws which apply to the Australian Public Service, companies should examine their processes in light of the controversy and ensure that they control employees' behaviour enough to protect the company's reputation but not so much that it unnecessarily regulates the employees' private activities.

Michaela Banerji was employed by Australia's Department of Immigration and Border Protection but tweeted anonymously as @LaLeglae. Her tweets criticised the government, the immigration minister, members of parliament, government immigration policy and her direct supervisor.

She was dismissed and her subsequent workers' compensation claim was rejected by Comcare. She challenged  Comcare's decision, and succeeded at the Administrative Appeals Tribunal (AAT).  Comcare then appealed to the High Court, and the hearing concluded late last month. Banerji relied on the implied constitutional freedom of political communication, which the AAT agreed with at first instance, ruling that the Public Service Act "unacceptably trespassed on the implied freedom of political communication".

Although the High Court's decision is not yet known, companies should not wait for that judgment before acting.

Some companies still rely on general IT use policies to govern employees' use of social media. This isn't good enough - a dedicated social media policy is essential to provide certainty to you and your employees about what is acceptable and what is not.

Your policy should be wide enough to capture social media conduct which might cause serious damage to the relationship between the employer and employee or which might damage the employer's interests. It should be made clear that this can include the use of social media outside of work hours.

But social media policies should avoid unnecessarily regulating the private activities of employees outside working hours, unless there is a real and relevant connection between those private activities and the employment relationship. Courts and tribunals will take a dim view of policies that overstep the mark.

Companies choose certain staff, usually senior management and press office employees, to speak for the company. A social media policy should make it clear to all other employees that they should never identify as or hold themselves out to be a representative of the company. The use of work email addresses also needs to be considered - some private actions using a work email address should be designated as inappropriate.

Social media use has the capacity to compromise online security, either through technical means such as the installation of programs which introduce viruses or by giving hackers information that they can use in social engineering, such as pretending to be an employee using information gathered online.

Staff must be informed of privacy settings, password security, and cybercriminal activity such as LinkedIn fraud and ransomware.

Employees should be given training on the use of social media ensure employees clearly understand their obligations when using social media, both in and out of work.

Private sector employers do not have the same power to intervene that government bodies do, especially if someone is using social media anonymously or if the connection between the person and the company is not clear.

They may also find it difficult to intervene if someone is expressing political or social views which are not connected to the company. A company should not seek to police its employees' views.

Some of these issues arose in a case between Colby Somogyi and LED Technologies, where Somogyi was summarily dismissed for posting an "undoubtedly crude and immature" post on Facebook. He succeeded with an unfair dismissal claim because it could not be shown that his rant was directed at his employer or its employees, and the post was made while he was on break. 

Most, though not all, Australian states and territories prohibit discrimination based on political belief or activity under anti-discrimination laws. The Fair Work Act also contains a number of provisions concerning discrimination on grounds such as political opinion or trade union membership.

But if an employee's comments stray into territory related to work then the ability to act will be related to the company's social media policies. If there are not clear policies, training and evidence of consistent implementation of the policies then there will be little a company can do.

Katie Williams and Patrick Williams are employment law experts at Pinsent Masons, the law firm behind Out-Law.com.