Tuesday, September 3, 2013

Caveat scriptor - the further perils of a social networker

Caveat scriptor! (Writer Beware!)

We mentioned a few times the problems that you might run into if you post something online without really thinking it through. It can go much further than a red face next time you see friends.

What’s bad for the individual can also be bad for the organisation too – vicarious liability (that we've mentioned many times) can mean that if an organisation can’t demonstrate that its’ trying to monitor and manage access it too can be considered liable for its employees actions. The real kicker here is that the organisation can’t even use the defense that it was unaware of the behavior, the law expects that sensible precautions will be taken.

The message was hammered home this week with the results of the Freedom of Information request to the Student Loan Company about misuse of social media. The response showed that there had been 4 cases (over 5 years) where disciplinary action had been taken. Although the details in the response are scant, there are indications that these individuals were using personal accounts.

Cue the debate about your right to say what you like and why should an employer be able to discipline (in these four cases – dismiss) you for what you say? It comes down to a question of whether you’re representing your employer – a question that was tested in the Adrian Smith case last year.

Essentially the test is this – would a reasonable person viewing your Blog / Wall / Tweets associate you with your employer. If they would then you suddenly need to be a lot more careful about what you say. Someone who finds your opinions objectionable may be also take action against your employer and it’s likely that they would then want to take action against you.

What’s the answer – keep your online work and your social life separate or be prepared to be squeaky clean if you don’t.

For the employers out there -  a strong Acceptable Usage Policy, combined with control of access to Social Media over your network, something that web filters are pretty good at, is a good start for a defense against vicarious liability.

Overall everyone must remember that once something is in print, be that electronic or hard copy it’s almost impossible to get back. As the Duke of Wellington said “Publish and be damned”

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