This article is written by Shreya Samal, pursuing a  Diploma in Business Laws for In House Counsels from lawsikho.com.

Introduction

The Article attempts to pen down the concept of Media communication policy by first defining the concept and bringing the viewer’s attention as to why  it is important for every organization to frame a Social Media communication policy with various case laws and real-life illustrations. The article further casts light upon the guidelines, which an organization should follow to frame a robust media communication policy and how to form an effective crisis management plan.

To delve into the concept, it is imperative to first define a social media policy.

What is a social media communication policy

A social media policy basically governs the conduct of employees on social media which can include any platform on the internet like blogs or networking sites like Linkedin, Facebook, Whatsapp, Twitter, Wikipedia etc. A social media policy consists of Do’s and don’ts for the employees working in an organization. Now an imminent question arises, why is a Social media policy required? Why is it so important?

Why social media communication policy

We are no strangers to the fact that the usage of social media forums and its users have increased exponentially in recent times. Careless use of social media like posting a derogatory or negative comment on social media can have a significant impact on business and involves unwarranted legal risks for the employers. The following are multitude of legal concerns which can be created by irresponsible use of social media by the employees:

• Data Security: An employee may unintentionally access malicious links or phishing schemes or scams which may compromise the employer’s details resulting in a data security breach which shall make the employer liable.
• Confidentiality: Any employee may loosely post client details, trade secrets or any other sensitive information pertaining to the business which may have a severe impact on the business.
• Defamation: Insensitive or inappropriate posts by employees which defames their competitors may hold the employer liable for the action of tort.
• Damaged Reputation: Any derogatory remark or negative comment which hurts the sentiments of any section of society or people in general, made by any employee on social media can harm the reputation of the business of the organization. Such an action may lead to a public relation nightmare for the organization.

Thus, an organization should ensure that all employees who use social media must maintain the integrity, reputation and the brand of the organization and try to minimize potential legal risks, irrespective of whether the inappropriate posts have been made during the course of employment or outside the course of employment. For this purpose, a social media communication policy needs to be enacted by every organization which shall consist of guidelines governing the conduct of employees on social media and the same should be followed by all the members of the organization.

Based on the discussion above, let us look at some incidents which resulted in employer-employee conflict on social media.

In the past few years, there have been a significant number of firings by employers due to the employee’s conduct on social media which resulted in a severe controversy. We need to understand that this is a problem, not confined to any one particular jurisdiction, but a problem faced globally. Here are some examples:

• In 2012, in Fort Wayne, Indiana, USA an employee from a popular fast food joint Taco Bell tweeted a photo of himself urinating into a plate of nachos (see here). This damaged the reputation of Taco Bell and the employee was immediately fired by Taco Bell.
• In 2013, an employee of a very popular fast food chain Burger King, tweeted a picture of himself lying on a heap of hamburger buns in Japan (See here). This created a lot of controversy concerning the hygiene of the burgers which eventually led to the employee getting fired and the Burger King chain issuing an official apology in this regard.
• In 2017, A very popular reporter and comedian from CNN Kathy Griffin was fired by CNN as she tweeted a photo shoot of her holding the severed head of Donald Trump, the current President of the USA. CNN received a lot of backlash due to the employee’s conduct. (See here)
• In June 2018, a supervisor working at an Abu Dhabi firm posted a Facebook video in which he threatened to kill the Chief Minister of Kerala, Pinarayi Vijayan and was filled with racial slurs and abuses. The firm received a lot of backlash and he was immediately fired. (See here)
• In March 2020, a Dubai based Indian chef of Lalit Hotel abused a woman online and threatened to rape her. Following this, people started requesting immediate arrest of the chef on social media. The Lalit hotel fired him and condemned his behaviour by issuing an official statement. (See here)
• In March 2020, an Indian staff member of a Dubai-based Transguard group was fired and deported for celebrating the terror attacks in New Zealand which killed 50 people on Facebook. (See here)
• In 2020, following the death of George Floyd in the USA, people across the world carried on a movement on social media with the tag line ‘Black lives matter’. However, a few employees from Cisco, the world’s largest networking company tweeted inappropriate comments like ‘All lives matter. Black lives don’t matter’ and other racial comments against the black community which did not go well with the people. They were immediately fired by Cisco for their inappropriate conduct. (See here)

Relevant Case laws

In the case of Crisp v. Apple Retail (UK) Limited, an employee working in Apple Co. was dismissed by the Company for posting negative comments about Apple products and the company had a clear policy which prohibited employees from posting anything on social media which affects their brand. The employment tribunal upheld the dismissal and stated that such an action can cause damage to the reputation of the Company.

1. In the case of Teggart v. Teletech, the complainant had posted obscene comments about his colleague as a result of which he was dismissed by the Company. The tribunal upheld his dismissal.
2. In the case of Game Retail Ltd v. Laws, an employee of Game Retail Ltd. tweeted negative and offensive comments about the towns he was visiting on an official tour as a result of which company dismissed him. The dismissal was held to be valid by the Employment Appellate Tribunal in the UK as the tweets could be seen by the public which would also include the company’s customers causing damage to the reputation of the company.
3. In the case of Preece v. Wetherspoons, a pub manager posted defamatory comments about two customers on Facebook while he was working. The pub, Wetherspoons had a clear policy that any staff or employee posts on Facebook lowers the reputation of the organization or its customer, he shall be subjected to disciplinary action. The manager was dismissed and the dismissal was found to be fair by the Employment Tribunal in the UK.

These issues highlight the importance of laying down comprehensive and effective social media communication guidelines in an organization as not doing so can impact the employer negatively.

What are the consequences if these guidelines are not framed properly

• In the case of Stephens v Halfords, an employee created a Facebook page where he defamed his company by making derogatory remarks on the page. Subsequently, the employee was dismissed by the company. However, the action of dismissal was challenged in the court and the court held that the response by the company was quite unfair and reasonable as the employee had a disciplinary clean record and he contended that upon finding out that his actions were wrong and that he had breached a company policy, he removed the page. 
• In another case of Grant & Ross v. Mitie Property Services UK Limited, two employees were dismissed by their employer for excessive usage of social media sites. But the employment tribunal held that the dismissals are invalid as the employer’s IT policy allowed the employees to access the internet outside the core working hours. The company’s disciplinary policy did not include unauthorized over usage of the internet as a gross misconduct.
• In the case of Smith v. Trafford Housing Trust, an employee posted comments on Facebook about religion and same-sex marriage while debating on it with a colleague on the platform. The Company had a policy which did not permit employees to promote political or religious views. The employee was held guilty by the company for gross misconduct and he was demoted. The employee challenged this at court for breach of contract. The court held that the demotion was unfair and it did not damage the company’s reputation. The employee was only putting forward his opinion on the topics. 

Hence, an employer’s social media policy should be framed properly for the employer to rely on breach of its policy to fire an employee. We shall now explore suggestions on how to draft an effective social media policy.

How to frame a good social media policy

Now framing an effective social media policy can be very tricky as there are no specific laws, rules or regulations governing the conduct of employees in an organization. Hence it is extremely important to focus majorly on framing effective social media policies as the consequences of not doing so can lead to unwarranted damage to the business. 

First and foremost, the approach to be taken while framing the policies is that they should be easy and simple to understand. Employees should not need lawyers to interpret them. The policies need to evolve from time to time and changes should be made whenever it is required.  Here are some essential guidelines which every organization should follow to frame robust social media communication policies:

1. The organization/employer should ensure that the policies are included in the contract of employment of the employee. This will make sure that the policies are formal and the employee is legally obligated to follow them.
2. If any employee has any grievance towards the organization/employer, the policies should include a proper complaint procedure to tend to such grievances as employees very often tend to share their grievances or complaints on social media when they feel frustrated which results in damaging the reputation of the employer/ organization.
3. The organization/employer should set out the parameters as to what action is prohibited and what action is allowed on social media by giving examples of actions and its consequences if they do not follow the guidelines in the policy. The employer should provide training to the employees either by video courses or manually on what constitutes acceptable behaviour and unacceptable behaviour on social media. 
4. The policies should entail appropriate etiquettes while engaging with people on social media. It is essential as social media has a wider audience which the person making the post may not be able to anticipate and any rude comment on inappropriate posts may render it viral and can cause a lot of damage.
5. The formulation of a social media policy depends on the nature of business of the organization. Some companies like Facebook or Google or media houses may actively encourage engagement on social media by employees while some entities like financial institutions, government agencies may disallow activities on social media. Hence it is important that the policies are aligned with the nature of the business.
6. The organization/employer should ensure that the policies establish the concept of personal accountability which means that if an employee states his opinion on social media, he should make it very clear that it is his personal viewpoint or opinion and not of his employer or his organization. The policy should include that an employee is responsible for his own actions and shall be held personally liable for inappropriate behavior on social media.
7. The organization/employer should ensure that a social media policy should prohibit defamation of colleagues or competitors in an online platform via factual comparisons of products or services. 
8. The policies should include prohibition of unauthorized usage of third-party copyrights, unlawful communications, any kind of offensive or discriminatory conduct or discussion of any matter pertaining to the organization or other employee’s personal lives, any confidential information, trade secrets or any other sensitive information on an online platform.
9. A social media communication policy should educate the employees to avoid any discussion on social media involving any ongoing litigation or mergers or any actions on the online platform which is violative of security laws.

How to develop a crisis management plan

No doubt the goal of a social media communication policy is to prevent the need for a social media crisis management plan, but it is best to have both in place.

• An organization/employer should set up a social media team which specifically deals with managing issues arising out of irresponsible use of social media by employees. Their roles should be clearly defined and they should be assigned the following responsibilities:

1. Training employees on the responsible use of social media.
2. Actively monitoring social media activities like tweets, blog comments, public postings, forum posts etc. of all employees including the executive team and shall use the required tools to monitor and search these sights.
3. Planning and strategizing a crisis management plan by coordinating with the legal and PR teams of the organization. Identifying the scope of crisis and coming up with a strategy to avert the crisis should be the main role of this team.
4. The team should also be responsible to deal with any negative feedback attributed toward the organization or its products or services by any of its customers or people in general. All employees should be prohibited from responding to the feedback, without their supervisor’s permission.

• If an employee is unsure about whether he/she is permitted to post any content on social media, he/she must first discuss it with any member of the social media team for clarification. 
• The IT Team should establish security protocols as there are a lot of social media risks. The organizational software needs to be updated from time to time.
• A 24/7 customer service should be available to address any grievance of customers due to any misconduct of an employee on social media.
• The employer/organization should encourage the employees to share their issues or grievances with the HR and make sure that their concerns are addressed adequately.
• If an employee is contacted by any person or a press member about his posts or is asked to discuss the business of his company, he shall consult his manager before responding.
• The employees should be encouraged to report any violation or potential violations of the social media policies by any member of the organization to their manager or the social media team.

Conclusion

As was very famously stated by Benjamin Franklin in the 18th Century, and I quote — “Glass, China and reputation are easily cracked and are never well amended”.

As discussed in this article, social media communication policies reflect the current understanding of an organization of the phenomenon that is social media. It is established that organizations/employers must frame clear and fair social media policies in order to mitigate any risks. We have also established from the prevalent judicial reviews that the social media communication policy needs to be inducted in the contract of employment as without it the employees may not be penalized for their gross misconduct. 

It is also necessary that any organization/employer while formulating the policies has to make sure that the policies are fair. Now what is a fair social media policy?

A fair social media policy should strike a balance within the rights of an employee and the rights of the organization. Any policy which imposes draconian policies and curbs the rights of employees in using social media may not go well with the courts and can be perceived as unfair.

While framing policies, the organization/employer must understand the attitude of their employees towards social media. They should assess the employee’s and the management’s perception of corporate culture & character and if they are inconsistent with each other, it can be addressed appropriately in a timely manner. Assessing the corporate culture is extremely important as corporate cultures differ in relation to usage of social media sites. For example, corporate giants like Facebook or Google have a liberal approach as they encourage their employees to post on an online platform whereas the banking sector will have a conservative approach and will forbid access to social media.

Thus, the importance of an effective social media communication policy cannot be emphasized enough. It is clear that the main goal of a social media communication policy is to prevent or minimize any adverse effect from irresponsible usage of social media by employees. The implementation plan should also be in place and be robust enough to give effect to these policies.

References

1. Article on “Friend or foe? Legal pitfalls in social media: The UK Experience” Available at file:///C:/Users/Admin/Downloads/Olswang_friend-or-foe-legal-pitfalls-in-social-media.pdf
2. Article on “Social media policies: When can employers take action?” Available at https://www.personneltoday.com/hr/social-media-policies-taking-disciplinary-action/
3. Article on “Employee’s use and misuse of social media”. Available at https://www.mccaysolicitors.co.uk/2015/07/18/employees-use-misuse-of-social-media-2/
4. Internet law Bulletin(newsletter), July 2017, volume 20 no. 4, Article on “How to write a social media policy”. Available at https://www.researchgate.net/profile/Ajantha_Thinakaran/publication/323336389_Internet_Law_Bulletin_newsletter2017Volume_20_No_4_–_July_2017How_to_write_a_social_media_policy_2017_204_INTLB_70/links/5a8e68be458515eb85aca99a/Internet-Law-Bulletin-newsletter-2017-Volume-20-No-4–July-2017-How-to-write-a-social-media-policy-2017-204-INTLB-70.pdf
5. Article on “Social Media and Internet Communication Policy”. Available at https://ccao.org/wpcontent/uploads/14%20Jan%202nd%20Weds%20Social%20Media%20Policy.pdf

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