Angus Macinnis, senior associate at law firm DibbsBarker, challenges the idea that social media policies are not important in law firms. If something goes wrong, he said, there will be no LOLs.
If you think that a social media policy isn’t something which is needed by your clients (or by your firm), you may wish to think again. In an unfair dismissal case decided by Fair Work Australia (FWA) late last year, an employer was trying to argue that it had fairly terminated an employee for material which the employee had posted on Facebook. The employer did not have a social media policy. Commissioner Roberts of FWA said, “in the current electronic age, this is not sufficient”. The employer lost the case. The employee was reinstated.
Social media policies don’t only become relevant when termination of employment is being considered. Indeed, the primary function of a social media policy is to provide guidance, and to ensure that employees are aware of the ways in which their social media use can affect their employment, especially in circumstances where the social media use occurs outside the scope of employment.
So, the first step is to make sure that the social media policy is consistent with, and refers to, other relevant policies (in particular, policies dealing with IT and email use, confidential information, and harassment, bullying and EEO). If your client (or firm) doesn’t have those policies, then you need those – in particular, if email and internet use is being monitored without a policy, that’s likely to be a breach of the Workplace Surveillance Act 2005 (NSW), which is a good thing to avoid.
The policy should then identify the ways in which social media use affects the reputation of the employer (or the reputation of the employee, if that is relevant to the employee’s ability to perform their job). This will depend on the employer’s industry; issues arise in schools which don’t arise in the finance industry (and vice versa). Where professional conduct rules apply (as is the case with lawyers) the policy should provide guidance as to the application of those rules. It is worth spending some time thinking about the issues which may arise in the workplace in which the policy will be used, because a template designed for a very different workplace may miss some key issues.
To protect reputation, the simple rule which the policy should explain is to always assume that the person who you would least like to see a social media posting (be it a client, a judge, or your mother) will see the posting. If that would have consequences for your reputation (or that of your employer) the posting is one you shouldn’t make.
Equally, employees shouldn’t assume that because they are using a pseudonym, they are safe to say things to which they wouldn’t put their names. Recently, Twitter users discovered that the user they knew as @Geeklawyer was actually English barrister David Harris, whose identity came to broader attention because he was fined £2,500 by the Bar Standards Board for bringing the legal profession into disrepute as a result of his pseudonymous tweets.
Finally, be brief. Don’t spend twelve pages of the policy trying to define “social media” – there are as many definitions of “social media” as there are people proffering such definitions, and by the time you’ve finished, there will be a new social media platform which renders your definition obsolete. You can, if you wish, be poetic; Quatrain LI of The Rubáiyát of Omar Khayyám:
"The Moving Finger writes: and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it."
This makes the useful point that information posted into social media channels can be impossible to delete. But if you find yourself with twenty pages of “thou shalt nots”, you are on the wrong track. And remember to lead by example – updating your Facebook status with “[name] is writing a social media policy so my dopey employees don’t get themselves into trouble LOL” is probably not the best way to start!