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Social Media Policies, Defamation and Freedom of Speech

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by Lisa Johnson

13 days ago

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Good old freedom of speech.  It’s become a mine field of extremism in recent times.  Terrible things get said in the name of freedom of speech sometimes and social media has made it ‘oh so easy’ to like it, to share it and to show it.  To make it even more challenging, the line between you, as an individual with your own personal opinions and views and you, as a representative of your employer OR as a consumer of business products / services continues to become more and more blurred.

Firstly, let’s talk for a minute about the couple who were sued for defamation by their wedding photographer after they allegedly went on a concerted social media campaign to ruin her business.  The photographer won and has been awarded USD$1.8m.  Which proves that you just cannot make up stuff and post it on social media to bad mouth a business.  More and more small to medium businesses are starting to challenge bad ‘reviews’ and negative comments on social media, so you really need to be able to back up any claims that you make or share about them.

Now, let’s get into the gnarly one…your employer’s rights to limit your ‘freedom of speech’ on social media.  Recently, the ABC sent an email to employees urging them to be circumspect on social media (in relation to the same sex marriage postal survey) – basically telling them to keep their own views to themselves as the ABC needs to be seen as being impartial to all sides of the same sex marriage argument.  According to some accounts in the media, some staff at the ABC felt that their employer was being heavy handed on this issue and were unhappy that they were being asked to not voice their own views on their own personal social media accounts.

So how can an employer tell you what you can and cannot say on social media? 

Well it all comes down to company social media policies and what you have agreed to as part of your employment contract.  Firstly, there HAS to be a social media policy, and this needs to be given to you and agreed to, by you.  This means it’s a good idea to read all that messy paperwork you get given when you sign on for a new job.

Generally, employer social media policies have rules around you ensuring that any comments you make on social media do not detract from or damage the reputation of your employer.  The Australian Public Service Commission has gone hard on this one, with new guidelines that…

“…warn public servants [that they] don’t have unlimited rights of free speech, including warning against breaches of the Public Service Code of Conduct through criticising departments, the government and opposition or through expressing negative views on government policies…liking, reposting and sharing social media content or even selecting Facebook’s ‘angry face’ icon could breach employment conditions..”

So if you are working in the Australian public service, you really are limited on what you can say about politicians, policies and perhaps even current events online.  And it doesn’t matter if you are using your own personal social media account or even a personal email…these rules apply.

Now the public service social media policy has been criticised, with union officials claiming that there is an imbalance between protecting the employer and everyday participation in ‘democratic debate’.  But regardless, the rules have been made and employees risk their employment by failing to follow them.

So what do you need to be aware of?

Firstly, be aware of what your company’s social media policies are.  Then be circumspect and aware of social media as a public forum.  Never forget that even if your page is private, your ‘friends’ can screen shot your posts and share them elsewhere; emails can be forwarded; text messages can be screen shot and emailed / shared to social media. And if a comment, post, text message or email that you have made could bring your employer, even by association, into disrepute then you can find yourself in a world of pain.

Is this like trying to shut the lid on Pandora’s Box in this age of ‘freedom of speech’? Probably, but you should always be aware that your right to express your own views does not come without consequence if your employer feels that you have damaged their brand by association.  You risk far more than annoying your Nana on Facebook these days…you can risk losing your job.

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