This article has been written by Shreya Jain, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Aditi Deshmukh (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Introduction

Human behavior can’t be controlled completely and people have different opinions or reactions to different situations. It takes sweat and blood for a company to establish its goodwill, and an employer cannot afford to keep a company’s goodwill and reputation at stake. An Employer takes all the requisite measures to secure its structure in and out. One of such proven measures includes the creation of an effective Social Media Policy for the employees which works as a shield for the company against sudden social media threats which may affect the goodwill of the company and its functioning.

One of the most relevant instances is of Elon Musks’ blunt smoking while he was appearing in a podcast with Joe Rogan which went viral. Resultantly, his company’s shares went down by six percent. To control such actions, social media policy and its implementation becomes mandatory and the mere reason for inculcating this policy in the company is to save the rights of the company to decide who can speak for the company. 

Companies like Wal-Mart have restricted their employees from speaking out loud to their customers about their concerns; they have a separate Social Media team that may connect to the public and resolve their queries and concerns. This point is specifically mentioned in the internal Social Media Policy of Walmart and is eventually important for other organisations too to educate their employees about their online personal or professional conduct.

This article discusses the importance of Social Media Policy, how it affects the profit of the company, what it entails, its nature, and its scope.

Social Media Policy and its importance 

Social Media Policy (hereinafter referred to as the Policy) is a set of guidelines that are prepared for the employees of the company. These guidelines are prepared to make the employees aware that their conduct in social media, personally or professionally, will affect the goodwill of the Company, and therefore, they have to conduct themselves in a certain manner, and follow the Policy.

Social Media Policy is a draft that is read out to the employees of the company or posted on the notice board conveying to them about the dos and don’ts on the social media at a personal or professional level; and why they need to be sensible while posting. It’s proven that one inappropriate comment/ or indecent gesture on Social Media may have a direct adverse effect on the profit of the business. 

The Policy does not restrict the employees to enjoy their social life in general. The Policy is only restricting those online posts in which an employee is representing himself/herself as an employee of the company and using inappropriate language or conduct. 

Merely a wrong reply to the customer, any indecent post, any political remark, or any other derogatory action of the employee may harm the reputation as well as productivity of the Company. 

Hence, an effective Policy contains comprehensive points for the employees to be kept in mind while presenting themselves online. If the Policy is not taken seriously, they may face legal or other consequences, depending upon the gravity of the post. It also makes sure employees don’t share any confidential information about the company or its customers in public.

Many giant companies have a separate and dedicated team for social media, and hence, other employees are not allowed to reply to their customers or the public. The team is trained for this particular purpose and will handle the responses or concerns as per the requirement of the customer. The employer has to make sure that all the key points mentioned in the policy are efficiently informed to its employees and these points have to be religiously followed by the employees while using their online accounts. 

Ten key pointers to be included in the Social Media Policy are

1. Restricting any illegal or discriminatory comment- Policy will mention that no employee would post anything online which is discriminatory in nature in relation to race, religion, colour, caste, sex, or creed. 

In addition to it, any post which is illegal or promotes hatred, or negative political comment would not be entertained. 

No employee should post anything which, directly or indirectly, affects the dignity of women. 

Any random post like sitting on burgers, licking the tacos or any such indecent picture which directly affects the image of the company shall not be entertained in any manner. It would be taken seriously and necessary steps shall be taken against the employee.

2. Don’t let strangers have the key to the company’s door- If anything is strictly confidential, it should be protected. Employees are restricted to share financial information, fellow employee’s information, the company’s future agenda, or any other information which harms the company and benefits other competitors, or haters or stalkers. 
3. Right to speech and expression- Employees should be motivated to use social media; restrictions to use their own media account may create frustration in them. Rather, they should be positively advised to use the online platform for the promotion of the company and the employee himself. Showcasing them the benefit of Social Media and its usage in the right way may speed up their progress in very little time. 

Zaapos is the perfect example to explain the power of social media. It has proved that an employee must be trained and then set free to express himself online (with regular reminders about the goal and aim of the company). Zappos has trained their employees acquainted with twitter and more than 400 employees are actively socialising online and creating personal relations with their customers and with each other to provide better services. This is how Zaapos has increased its sales.

4. Right to Privacy- Company has the complete right to save its data, confidential information from the world outside. The Company must have the right to decide which part of its culture it wants to put out to the world and which part the company wants to reserve.
5. Employees should specifically mention in the post that the views and opinions are personal and have no relation to the company. It helps the general public to bifurcate between personal and professional views of the employee.
6. It should also be aired out by the company to all the employees that they are not supposed to respond to any comment. If they come across any negative post or comment from the public, they may pass that information to the concerned person in the company who takes care of social media. Any person other than assigned the particular must not exercise such right; it may tarnish the image of the company and at the same time may affect the productivity of the company. 
7. Follow your intuitions, spur of the moment may affect you and the company- If you are pondering upon the information, you are about to post, then don’t post it. You need to be genuine, sensible, and transparent while conducting yourself online. No threat wars, misconduct, misleading statements must be posted. Employees should showcase themselves gracefully. 
8. Consequences-

1. You may lose your job- The employee may face threats to their job if they run afoul of the guidelines. Therefore, they are responsible for their actions 
2. One’s action may also lead to a decrease in productivity and sales of the company
3. Image of the company and employee himself is at stake 
4. No control over the post- Company may retain the right to delete, or amend or may also provide clear instructions to the employee to make necessary changes, as and when needed. 

9. Legal risks- Any illegal activity on the internet may put the employee behind bars, or worse. Employees should be very vigilant while exercising their rights on online platforms.
10. Knight in the shining armour- Every company has an assigned person or a team who deals with the customers online. They are responsible to keep a check on all social media activities and keep it on track. They are trained to respond to negative posts, hateful texts, or any other issues, which may arise.

The points mentioned above are imbibed in the Policy very clearly, and in case of failure to follow these key points, the employer can retain the right to bring disciplinary sanctions against the employee for breach of the said Policy. 

What disciplinary sanctions may be brought against the employee for breach of the social media policy?

Ellis, a plaintiff in Ellis v Bank of New York Mellon Corp, who worked in a bank was terminated from her services based on her social media post on her Facebook account. She violated the bank’s Code of Conduct and its Social Media Policy as she posted a comment online which demonstrated support in favour of the protestors protesting the death of a black man who was killed by the police officers. 

Plant v API Microelectronics Ltd is another important case that reminds the significance of Social Media Policy in place. A seventeen years old employee was terminated for her inappropriate and derogatory statement on her facebook post, henceforth, evidently, breach of social media policy of the company.  

These cases are classic examples of how disciplinary sanctions can be brought against the employees for breach of the social media policy.

Sanctions against the employee may include:

• termination of the employee,
• suspension of the employee,
• taking in control of the online account of the employee,
• to ask the employee to delete the derogatory post,
• warnings,
• reduction in salary,
• reassignment of duties,
• employees may also end up in jail in any anti-national posts or other related posts,
• or any other disciplinary sanctions as may deem fit in accordance with the situation.

Primarily, these sanctions are imposed by the employer against any employee who has acted in violation of the Social Media Policy through its online activity. The gravity of punishments is dependent on the level of harm caused to or derogatory to the reputation of the company, or any provision of any law, or in accordance with the rules provided in the policy of the company. 

However, the employer cannot act unreasonably while imposing sanctions against the employee. They are accountable and have to justify their actions by providing a genuine reason to the concerned employee who has been charged with a breach. Therefore, it is pertinent to insert an appropriate disciplinary procedure in the policy for breaches concerning Social Media Policy. 

What action pointers should the employer follow?

Currently, Social Media Policy plays an integral part in an organisation and for the same reason, sometimes employers have to follow a strict procedure for employees to adhere to the policy. Major actions which can be taken by the employers regularly may include: –

• Conveying the actual reasons to the employees for implementing social media policy in the workplace,
• Educate employees to prevent themselves from getting involved in inappropriate or unacceptable conduct,
• Repeatedly remind them that Social Media is a public platform and people are watching you,
• Stipulating the fact that harassing, discriminatory, obscene, pornographic, and malicious conduct is not acceptable,
• Refraining the employees from any trade secret, or any confidential information of the employers on social media,
• Employers should be advised to use their complete senses while posting on social media,
• Employees should disclaim that the post contains opinions, thoughts, etc. of the employee himself/herself and not the employer,
• Specify that any posts to be made in the name of the employer would be first authorised by the employer himself before going online

However, adopting the policy in the company does not only restrict the employee’s online activity, it may affect the business of the employer as well. 

What are the drawbacks of the Policy?

• No right to speak- Some employees may think that the Policy has taken away their fundamental right to speech and expression. The National Labour Relation Act explicates that not providing confidential Information in the media is illegal and takes away their right to shoot out to the public about their unfair working environment.
• Lack of social media use– Restricting the use of Social Media may also lessen the promotional activities. Presently, Social Media has been the best source of marketing, and restricting the same may harm the market.
• Restrictions may bring negativity– If employees are young and are addicted to social media, restricting them may create chaos within the company, creating an unhealthy working environment. 

These drawbacks can be minimised if the policy created by the company is in accordance with its working culture and implemented with equal zest. 

How do you know that the policy created by the company is effective?

Merely providing a ready-made Social Media Policy to its employees is not sufficient; the Company has to focus on implementing it too. It is not a short training that is completed in a day or two. It is a journey, wherein there will be many complications. The company has to provide frequent reminders to its employees so that they may not miss this part. The concerned social media person in the company may keep a regular check on the posts of its employees. The training is perpetual and may get updated with time. Companies may paste the policy on the company’s bulletin board, or the doors, for it to be visible to the employees. Also, companies may reserve the right to delete or make necessary amendments to any employees’ online posts. 

Landmark Cases and findings

There has been an enormous hike in cases addressing social media. Implementation of the policies has become an integral part of the company. In case of breach of Social Media Policy, companies have conscientiously sanctioned their employees, and in some cases, terminated the concerned employee who has been liable for breach.

Few judgments and findings wherein employees were terminated or fined from its services for breach of the said Policy are: – 

Whitham v. Club 24 Ltd.

Mrs. Whitham was initially terminated from her services for sharing unfavourable comments about her colleague on facebook. The matter went to the Employment Tribunal wherein it was found that reasonable investigation was not conducted on the given situation and therefore, termination can not be done. Although Mrs. William had to pay a compensatory award for her contributory fault.

Lougheed Imports v. Local 1518

Two employees made Facebook postings containing threats, defamatory statements about a manager, and discouraged the public from patronizing the employer’s business, whereafter employees were terminated. The matter went to the Board and the Board held that privacy in public Facebook posts does not exist and that their posts were damaging the employer’s business.

There are various factors that assist in deciding the sanctioning of the employee after the breach of the Policy. Some of the factors to be kept in mind while dismissing for social media misconduct may include:- 

• The seniority of the employee, 
• The risk of reputational damage, 
• Reasonable investigation, 
• When social media is made public,
• The terms of the company’s Social Media Policy.

Conclusion

Rules are the guidelines that acts as a protocol to the employees that if they are involved with any unlawful activity, indecent behaviour, or any other activity which directly or indirectly would affect the work of the company, he will have to face consequences for the same. Social Media Policy plays the same role and I think it would be an indispensable part of all the companies with the increase in the pace of Social Media usage. 

Major future concerns in relation to the policy include its accountability. Social Media Policy is not a law or legally binding document; it is merely a guideline. Therefore, no action can be taken against anybody unless provided in any specific contract. Another concern arises concerning the incorporation of such policies in small companies; it would be an extra burden on them to create and then comply with regular checks. 

Time is running fast and with that, changes are mandatory to match the pace. People have to be acquainted with novel thoughts, laws, technology, or any other innovation and imbibe them into their daily lives. Ignorance on that part could affect the profit of the company or diminish the business, in some cases. Social Media Policy is one such draft, which will play a vital role in a company in the future, which, according to me, would be a mandatory draft (looking at the increase in the use of Social Media amongst youngsters).

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