Social media doesn't equal liability free

by Andrea Ward

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09 Nov 2012

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SOCIAL MEDIA'S usefulness as a marketing tool is widely known and exploited by businesses keen to demonstrate how ‘on trend' and approachable they are. Accountants and other regulated professionals may be less likely to share their thoughts and professional opinions in the same way on Facebook, Twitter and LinkedIn, but are equally encouraged to generate new contacts, understand their clients and communicate with them, using these tools. Used appropriately and with the right safeguards in place, social media can be an effective resource for accountancy firms, as it is for other businesses. 

However, as previous cases and headlines have shown, social media gaffes continue to cause headaches for companies and, though a higher standard of behaviour ought to be expected, professional service providers are unfortunately not immune to the problems of information leaks, embarrassing ‘viral' emails or badly worded tweets.

An individual's online behaviour is not necessarily private. The conviction of a Cambridge graduate software engineer this summer for the sexual harassment of work colleagues, using email and Facebook messages, illustrates that social media can become a workplace issue, and a legitimate concern for employers.

Nowhere to hide

Internet and email usage policies remind staff to be cautious when wording and sending emails, whether work-related or personal, as emails sent from your work email address automatically create an association with your employer. This is usually clear from the email address and footer, but you also represent the business.

Most employees understand and respect these email policies, but since other methods of online communication are equally common, employees need to know that whatever they say or do online (discriminating against a colleague, sexually harassing a client, or abusing a celebrity, for example) can become a work issue – regardless of whether they state all opinions are their own.

Employees using social media need to be reminded of their employer's policies on bullying and harassment, and equal opportunities, to prevent discrimination against others. For the guilty employee, such incidents normally lead to disciplinary sanctions, up to and including dismissal, but could potentially also lead to criminal sanctions for malicious communications. As well as creating negative publicity and damage to a firm's goodwill, employers may face employment tribunal claims from individual employees if another employee's online behaviour constitutes discrimination, harassment or victimisation contrary to the Equality Act 2010.

This is because employers are vicariously responsible for the actions of their employees, in the course of their employment. If those actions extend to bullying and harassment of a colleague on Facebook (ostensibly in a personal capacity, using their own iPhone or laptop, rather than a work email), and the company does nothing to prevent or address this type of behaviour, the employer could be liable.

Firms should create a dedicated social media policy which addresses these issues, clearly setting out their own rules on what is acceptable and what is not, in line with professional obligations, industry standards (ICAEW or FSA rules, for example) and their own clients' expectations.

Under lock and key

One of the biggest concerns for professional advisors, in any field, is client confidentiality. The identity of existing and potential clients, as well as the confidential information belonging to them, is extremely important and, unless specifically sanctioned by the firm or the client, mentioning clients or clients' activities in any social media forum is unlikely to be acceptable.

An effective policy for some firms may mean that employees' use of some or all social media is prohibited during working hours or from company-owned equipment. For example, Facebook access could be blocked entirely, but personal use from a home PC or smartphone permitted, provided that employees do not post comments, or photos, that bring the firm into disrepute.

The social media policy might also set limits or issue guidelines for use of ‘professional' social networks, such as LinkedIn. For example, ensuring that employees use only firm-approved biographies, photos or articles and encouraging them to share information and contacts with colleagues and third parties, subject to confidentiality provisions. Policies such as this are a good way to remind employees that contacts made during the course of employment belong to the employer and LinkedIn contact lists may need to be deleted or given up when the employee leaves the firm.

Deleting a company-owned LinkedIn or Twitter account is one way to address this, but employees may have created their own, taking their list of contacts or ‘followers' with them. Protecting the names of clients and potential clients is a legitimate business interest, and therefore in addition to ensuring that appropriate post-termination restrictive covenants are in employees' contracts, firms should also ensure that employees accept and understand these social media rules.

Andrea Ward is a senior associate at international law firm, McGuireWoods London. 

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