Combating Social Media Misuse

Posted on Wednesday 15th November, 2017 by

brachers-factsheet-banner

Download the fact sheet here >>

Generally the overarching aim of using social media is to promote a positive image of the business but there can be many challenges due to its very public nature and clear guidelines need to be provided for employees.

Most businesses have a presence on a social media website, whether that is Facebook, LinkedIn or Twitter. Generally the overarching aim is to promote a positive image of the business but there can be many challenges presented by social media due to its very public nature and clear guidelines need to be provided for employees. The availability of social media as a persuasive, large-scale communication tool has made it easier for employees to announce their departure from one employer and the identity of their new employer, simply by updating their place of work. If an employee is particularly good, this may result in clients following them.

Recent cases

An employment tribunal held, in the recent case of Creighton v Together Housing Association Ltd, that a long-serving employee was fairly dismissed for making derogatory comments about his colleagues and his employer on Twitter up to three years previously. His employer was entitled to take action when it discovered the comments and the age of the tweets did not matter. Another case of Whitmar Publications Ltd v Gamage and others saw a former employee attempt to rely on LinkedIn’s terms of use to argue that several LinkedIn groups she had managed during her employment were personal to her. The court accepted a springboard injunction, finding that the employee’s duties included responsibility for dealing with the LinkedIn accounts, operated for the benefit of the employer. Thus management and control of the LinkedIn groups was handed over, overriding the LinkedIn User Agreement. Commentators have suggested recent decision suggest the courts are favouring employers where it is suggested there has been misuse of social media by employees. However it is clear that employers need to take appropriate action for their own protection.

social-media

Social Media Policies

Arguably the law has not caught up with the significant advances in technology over the last decade in relation to social media and it is advisable for employers to put in place a social media policy, whether or not social media forms part of the day to day business. This should make clear whether employees are permitted to use personal social media account for business purposes, and in particular, whether they are permitted to add business contacts to their personal accounts, and what should happen to this information on termination of employment. Valuable contact information can be built up in a personal social media account during employment which will remain available to the employee after termination. Such information will never have been stored on the employer’s IT system and employees with valuable contacts to protect may need to include specific contractual provisions to protect their interests.

Restrictive covenants and ex-employees

Restrictive covenants are contractual terms aimed at protecting your business from unfair competition by former employees, contractors, officers and directors. They will only be enforceable if they are no wider than is needed to protect legitimate business interests and therefore require careful drafting. For many businesses their key assets include customer connections and confidential information. Carefully drafted contracts can be a valuable means of protecting these key elements of a business.

social-media-2

Protecting a legitimate interest

The courts have recognised that employees may build up close relationships with people in business and gain their trust so they may seek to take advantage of these relationships in a subsequent role, even though the trade connections belong to the employer. If these relationships have built up enough then a customer/client may follow an employee when they move business. This type of legitimate interest can be protected by a non-solicitation or non-dealing covenant and in some, more rare, cases by a non-compete covenant. In the absence of properly designed and focused post termination restrictions, the law provides little or no protection and an employee is free to join a competitor and solicit business from their former customers. The emphasis is on the protection being no wider than reasonably necessary to protect the legitimate interest.

What to do?

We advise all our clients to review their current positions on social media use and on ensuring key contacts and confidential information is protected. If you think you may not be adequately protected, waiting until an employee leaves is often too little too late. Brachers can offer assistance in drafting effective policies and post-termination restrictive covenants. If you would like advice on the issues discussed please contact Catherine Daw, Head of Employment, on 01622 690691 or email at catherinedaw@brachers.co.uk

Download the fact sheet here >>

Comments are closed.