THE DANGERS OF SOCIAL MEDIA

RMT helpline 0800 376 3706 :: october 2014 :: RMTnews 22 LEGAL THE DANGERS OF SOCIAL MEDIA A body of case law surrounding implications of social media in the workplace has developed ranging from dismissals for Facebook posts and allegations of bullying and harassment. An increasing number of cases involve employees making derogatory comments about work. These cases illustrate that an employee’s conduct on Facebook can be misconduct, even if they make the post at home out of working hours. Disciplinary action must be in accordance with established disciplinary policies and the employer must act fairly. Generally speaking claims relying on the Human Rights Act are only of direct relevance to the public sector. However, private sector employers must still have regard to the principals as tribunals and courts are required as far as possible to interpret all legislation in a way that is compatible with the Convention. Article 8 Right to Privacy It is difficult to establish that an employee has a reasonable expectation of privacy in relation to comments made on social media. The judicial reasoning in cases shows a limited focus on whether comments are made in or outside of normal working hours or using the employer’s or employee’s computer. What is important is whether there is a clear connection to work and the impact on the employer in practice. In Gosden v Lifeline Projects Limited, Mr Gosden sent an email containing racist comments from his personal email account to the personal email account of his colleague. Mr Gosden included in his email; “pass it on”. His dismissal was found to be fair. Mr Gosden admitted that he had sent the "joke" or "spam" email. The email clearly stated that it should be passed on and so he should reasonably have expected it to have been forwarded. ARTICLE 10 FREEDOM OF EXPRESSION In Crisp v Apple Mr Crisp was dismissed for posting derogatory comments on Facebook about his employer. He argued that his comment could only be viewed by his friends. The tribunal held that Article 10 was engaged but that the decision to dismiss was proportionate to the harm caused. In contrast, in Smith v Trafford Housing Trust Mr Smith described himself as a “full on Christian” on his Facebook page and posted a link to an article about gay marriage with the caption “an equality too far”. His employer had no right to demote him in these circumstances as the post was not capable of bringing the employer into disrepute. PRIVACY AND THE DATA PROTECTION ACT 1998 The 1998 Act limits the extent to which personal data can be gathered and what can be done with it. Typical forms of monitoring e.g. intercepting emails, tracking internet history, recording calls are “processing personal data” under 1998 Act. The Act ensures that data is processed fairly and lawfully. While employers are forced to collect data only for relevant business purposes, there is no description of what would constitute a legitimate business interest. Generally employers need the consent of employees before they can lawfully monitor communications at work e.g. email, internet use, telephone conversations CRIMINAL LAWRMT members should be aware of the various criminal offences that can be committed via social media. It is an offence to cause distress or threaten individuals online. The primary legislation that has been successfully used to prosecute numerous individuals regarding their social media usage in the UK is Section 127 Communications Act 2003, the punishments range from fines to a prison sentence. This Act covers the sending of improper messages and states that: “A person is guilty of an offence if he - 1. sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or 2. causes any such message or matter to be so sent.” The test for "grossly offensive" was stated by the House of Lords in DPP v Collins [2006] to be whether the message would cause gross offence to those to whom it relates (in that case ethnic minorities) who, importantly, need not be the recipients. Furthermore behavior which includes the use discriminatory language online can lead to aggravated public order offences under the Public Order Act 1986. Use of social networking sites can also constitute violation of injunctions, bail conditions and court orders. This could include contacting people via social networking contrary to the orders of a court, breaching an injunction or naming the victim of a sexual offence. Jurors are frequently warned by judges not to use social media to discuss the details of a case or contact involved parties. Such infringement would constitute contempt of court, and is treated very seriously as was witnessed in 2013 when two jurors received prison sentences for discussing details of a case online. Two other high profile cases that members should be aware of regarding the use of social networking come from 2011 when two teenagers, who had set up Facebook groups calling for rioting during the widespread riots of that year, were convicted and given four year prison sentences for incitement to riot. Sarah Henderson of Thompsons solicitors outlines the law involving the use of social media websites