Yours tweetfully: social media, employment and the privacy paradox

Leigh Howard On 6 September 2011 the LIV Young Lawyers Law Reform Committee hosted an expert panel discussion entitled Keeping Your Privates Private Social Media and You!. The event will, no doubt, prove to be the beginning of a greater discourse surrounding social media under the LIVs leadership. The existence of 500 million Facebook users and 175 million Twitter users1 suggests that social medias relevance to the legal profession is only to be expected. However its potential application remains relatively unexplored. One area where we are beginning to see some exploration is within employment law. Employers screening job applicants social media profiles2, litigants tendering Facebook profiles in workers compensation cases3 and even employers sacking employees over a social media platform4 are all reported examples. Unfair dismissal applications concerning use of social media are beginning to be arbitrated by Fair Work Australia (FWA), and a body of tribunal jurisprudence considering the impact of social media on the employment relationship is beginning to develop. This article distils the principles deriving from those cases and then looks further to other legal areas where social media will inevitably come into play.

Clayton Utz, Melbourne. Email: lhoward@claytonutz.com. This paper was originally published in (2012) 86(5) LIJ 32. The opinions expressed in this article are the authors alone. Ken Strutin, Social media and the vanishing points of ethical and constitutional boundaries (2011) Pace Law Review 31(1) 229.
1

Leslie Horn, How employers use Facebook and Twitter to hire (and fire ), PC Magazine (online), 16 August 2011.
2 3 4

OConnor v Australian Postal Corporation [2011] AATA 373. See for example Streeter v Telstra (2008) 170 IR 1 and McManus v Scott-Charlton (1996) 140 ALR 625.

An extension of the out of hours conduct principle

While not confirmed by higher courts, both trial judges and industrial tribunals have recognised an employers right to discipline employees for conduct outside the hours of employment.5 The oft cited boundaries of this right were expounded in Rose v Telstra6, where Vice President Ross (as His Honour then was) held that a dismissal is valid if the conduct in question: is likely to cause serious damage to the relationship between the employer and the employee; or damages the employers interests; or is incompatible with the employees duty as an employee.

For the most part, FWA decisions concerning social media have this out of hours element. An employee, having been incensed by their employers actions, has used their social media account to vent their displeasure. Cases include: Dover-Ray v Real Insurance,7 where the employee posted a particularly disparaging blog on her MySpace page after an investigation into her allegations of sexual harassment concluded. She titled her blog Corruption, labelled her employers witch hunters and accused them of chasing dollars over safety; Fitzgerald v Smith T/A Escape Hair Design,8 where the employee updated her Facebook status with Xmas bonus alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic] after being

Julie Molt, Woman sacked on Facebook for complaining about her boss after forgetting she had added him as a friend, Daily Mail (online), 14 August 2009.
5 6 7 8

Print Q9292, 4 December 1998. [2010] FWA 8544. [2010] FWA 7358.

counselled for punctuality and discovering she was receiving a less than expected Christmas bonus; OKeefe v Williams T/A Troy Williams The Good Guys,9 where the employee published a Facebook status littered with profanities directed at his employers payroll staff for paying him an incorrect sum of wages; and Stutsel v Linfox, where the employee's racially and sexually derogatory Facebook comments about his managers were of such nature that FWA felt they were "best not explicitly set out."10 In all of the above cases the tribunal has either expressly recognised that conduct occurring over social media platforms attracts the Rose out of hours principle or acted on that basis without an express determination. Set out below are the key principles derived from these decisions.

Social media interaction is not private interaction

Commentators have previously noted how social media has created a murky middle ground between private and public conduct.11 In abstract, this much is true; social media is an opportunity to broadcast ones private thoughts in a forum that can be public. How public ones social media page is is a matter for the user; most commonly, a user will at least share their social media page with their friends, family and colleagues. Because users are sharing their private thoughts with a group of chosen individuals, people who share their thoughts through social media seemingly do so with an expectation that they are private or have a flavour of confidence.

[2011] FWA 5311.

[2011] FWA 8444, [7]; [2012] FWAFB 7097. Press reports that this matter has been appealed to the Federal Court. It appears this appeal will be the first Court (rather than tribunal ) judgment considering the implications of social media upon employment in the common law world.
10

Bridget Ackers, Face off on Facebook (2009) 43 Law Society Journal 42; Suzanne Cusack, Employee privacy in the modern workplace (2010) 7(3) Privacy Law Bulletin 40.
11

Such an expectation was demonstrated by the applicant in Dover-Ray. When examined on why she chose to publish the disparaging blog, she stated that it was intended for her MySpace friends and was not intended to be viewed by her employer. The parties were in dispute as to whether this was accidental and whether the blog was intended to be viewed by the general public. Commissioner Thatcher ruled that the employees intention that it be kept private added little to her case. It was enough that her MySpace friends included her colleagues. From this, it could be reasonably expected that the blog would be circulated within the workplace and thus it was found that the employee intended to damage the employers interests.12 The employee in Fitzgerald raised similar arguments. While Commissioner Bissett ultimately found that the dismissal was unfair for unrelated circumstances, the following warning to facebookers and tweeps was issued: What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people . . . A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see . . . It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.13 While there is a murky middle ground between social media and privacy in the abstract, these decisions confirm the legal view that users of social media are in fact publishers in a public realm. Privacy settings do not cloak the user in anonymity or provide legal protection against employer action. This was cogently articulated by Brown J of the Ontario Superior Court of Justice, who draws a useful analogy with one's personal diary:

12 13

Dover-Ray, at [50]-[51]. Fitzgerald, at [50]-[52].

"It is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of "friends" with whom they can share information about themselves, and on which "friends" can post information about the user . . . [therefore] A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action."14

What kinds of social media misuse will constitute a valid reason for dismissal?
The tribunal has grappled with a variety of circumstances where social media misuse has been factored into a dismissal. When it comes to employees remarks that are damaging to the employers interests or the relationship generally, it is a question of degree. Both the blog in Dover-Ray and the profanities directed at the employer in OKeefe were held to meet a requisite offensiveness that entitled the employer to dismiss. Yet the comments in Fitzgerald were not sufficient because, if they were, the employer would have acted immediately and not delayed the discipline for six weeks. The fact that the employee in Fitzgerald did not name her employer also diminished the argument that the employers reputation could have been damaged.15 Aside from those cases, it is also worth noting that social media is providing a goldmine16 when it comes to evidence gathering. For example, in Dekort v Johns River Tavern17 an employee took sick leave on New Years Eve, only to be tagged in a photo that showed him attending a party that night. The employees claim was dismissed without going to a full hearing, on the

14 15 16 17

Leduc v Roman (2009) 308 DLR (4th) 353, [32]-[33]. Note 12, at [54]. Facebook a new source for lawyers, Lawyers Weekly (online), 21 August 2011. [2010] FWA 3389.

basis that he had no prospects of success. Such cases implicitly affirm the public nature of social media.18

Where to next? Discrimination, harassment, bullying and victimisation

FWA may be the first, but will not be the last, arbiter to confront the complex issues presented by social media and employment. It is highly likely, if not a certainty, that social media will soon make a foray into discrimination jurisprudence in circumstances where harassment, bullying, vilification or discrimination occurs over a social media platform.19 Moreover, it is possible that employers could face claims for damages owing to the vicarious liability provisions within discrimination statutes. Such a possibility was identified by the employer in OKeefe, who refused the employees request for reinstatement because that would risk the lodgement of a harassment claim by the female employees to whom OKeefes profanities were directed.20 While the various federal and Victorian statutes differ in language, they generally provide that vicarious liability operates where there is a connection between employment and the discriminatory conduct.21 Should that be proven, and should it be established that the discriminator was not on a frolic of their own,22 the complainant may join the employer and retrieve compensation. Employers can be excused from liability if they can establish that they took reasonable steps or precautions to avoid the conduct taking place.

See also Mayberry v Kijani Investments T/A Subway [2011] FWA 3496, where the employee was dismissed after the employer discovered a photo of the employee on Facebook which showed her behind the employers counter dressed in a cardboard box that she had located in the bin. The dismissal was held to be unfair for both procedural and substantive reasons.
18

Bullying over a social media platform has featured in the criminal jurisdiction. For example, in R v Gerada (unreported, Magistrates Court, 9 April 2010, Magistrate Reardon) the victim was bullied predominantly over Facebook and SMS for a three-month period, which eventually led to his suicide. The accused pleaded guilty to stalking and received an 18-month community-based order.
19 20 21

OKeefe, at [29].

See Sex Discrimination Act 1984 (Cth), s106; Racial Discrimination Act 1975 (Cth), s18E; Disability Discrimination Act 1992 (Cth), s123; Equal Opportunity Act 2010 (Vic), s109.
22

Morris v CW Martin & Sons Limited [1966] 1 QB 716.

Thus, vicarious liability in discrimination law operates in a far more constrained area than the out-of-hours principles in Rose. However, a line cannot be drawn so easily. Most often, harassment, victimisation, discrimination and bullying are progressive, and conduct transpires both in and out of work hours. Vicarious liability becomes blurred, and whether it happened during work time becomes less important. This is what happened in Lee v Smith, a sexual harassment case, where the employer was held liable for out of hours sexual harassment because it was an extension or continuation of [a] pattern of behaviour that had started and continued to develop in the workplace.23 By its very nature, social media increases the opportunity for discriminatory behaviour to transpire in and out of work hours. The enhanced connectivity it provides to individuals makes it much more likely that workplace harassment will continue beyond the workplace. Practitioners who advise employers should direct their clients attention to this fact when advising on workplace policies concerning discrimination, harassment and bullying.

The right to complain under the Fair Work Act and social media
Social media may also be relevant to the general protections afforded by the Fair Work Act 2009 (Cth) (FW Act). Before the enactment of the FW Act, an employee was protected from differential treatment or injury to their employment if they made, or proposed to make, a complaint about their employment to a person or body that had the capacity to enforce their industrial rights (for example, an employer, FWA or an industrial union).24 Section 341(1)(c)(ii) of the FW Act has significantly broadened this protection by omitting the requirement that the complaint be made to a person or body. All that is now required is that the employee be able to make a complaint and that the complaint be in relation to their employment. By omitting the requirement that a complaint be directed to someone capable of enforcing their industrial rights, employees are logically free to make a complaint to anyone they see fit, be it in private or in a public forum. Thus, the question is: could complaints aired on social media, such as those in Fitzgerald and Dover-Ray, come within this new broad protection?
23 24

(2007) EOC 93-456, at [206]. Workplace Relations Act 1996 (Cth), ss792-793.

Much would hinge on the meaning of able to make a complaint and how broadly that will be interpreted by the courts. Ability in this context could derive from a procedure in an industrial instrument or an employment contract. At its broadest, an ability may be derived from a general freedom of expression conferred by the section. Most recently, in Ramos v Good Samaritan Industries Driver FM acted on the basis that an employee was able to complain about his treatment without any reference to an enabling industrial instrument.25 Should the ability be as broad as that, the legislation provides no further limitations as to the methods an employee can utilise to complain. The explanatory memorandum to the FW Act arguably confirms this interpretation by providing non-exhaustive examples of complaints and even provides an example where an employee mistakenly complains to the incorrect enforcement agency.26 While very uncertain, the better view is that the legislature intended this new right to complain to be subject to the common law duty of good faith and fidelity (the third Rose instance where an employer has a right to interfere with out-of-hours conduct). Interpreted in this way, s341(1)(c)(ii) would not give employees carte blanche to air their complaints on a social media platform. Having said that, such a legislative intention is not immediately evident from secondary materials. The extent of the right to complain and its potential relevance to social media remains to be seen.

Conclusion
Two lessons can be learned from this article. First and most obvious, individuals must be cautious as to how they conduct themselves on social media platforms. Despite the ability to choose ones audience and restrict privacy settings, FWA decisions to date indicate that sharing information on social media is still public conduct. Tweets and statuses injurious to the employer in the Rose sense are to be published at ones peril.

[2011] FMCA 341, at [45]. The Federal Court in Barnett v Territory Insurance Office [2011] FCA 968 decided that an employment contract was not an industrial instrument as defined by the FW Act, and accordingly, an employee could not have recourse to the FW Acts general protections. However, the right to complain expressed by s341(1)(c)(ii) makes no reference to industrial instrument and thus should not be confined to grievance procedures under enterprise agreements or awards.
25 26

Explanatory memorandum, Fair Work Bill 2008 (Cth), 217-218.

Second, employers must respond to the issues social media raise for the workplace. Employers have begun to do so by enacting policies concerning social media and confidentiality, copyright and overuse. However, specific consideration needs to be given to the issues described in this article. It is suggested that a good social media policy would: articulate why adverse statements regarding the employer on social media would damage the interests of the employer; explain what is acceptable and unacceptable behaviour on social media, both during work hours and out of hours; state that employees must refrain from defamation, discrimination, harassment, bullying and victimisation; emphasise that courtesy and respect towards colleagues on social media platforms should be demonstrated at all times; and indicate the consequences of breaching the policy.

If properly implemented, such a policy would clarify expectations and stymie the risks of social media described in this article.