Criminal, Civil and Other Issues

The past few years have seen a huge growth in the use of social media, both by individuals and within businesses, and alongside that growth has come the increase in the problems which individuals and businesses face in how to manage social media within the workplace. For those in the legal profession, issues such as confidentiality, regulatory problems, HR and recruitment issues, cyber bullying and discrimination, contempt of court, evidential issues, productivity problems and reputational difficulties are just the tip of the iceberg and firms everywhere are having to face the consequences of this expansion.

In this, the second article in a three part series dealing with the management of social media, we look at some of the criminal, civil, reputational and employment issues that can arise. In the third and final part we will look at some of the steps that firms can take in order to address the issues within their own firms.

Criminal Issues

There are a number of areas in relation to the use of social media where criminal issues can arise. These include:

• Circumstances where a credible threat of violence to the person or damage to property is made via social media – there may, for example, be charges arising under section 16 of the Offences Against the Person Act 1861, section 1 of the Malicious Communications Act 1988 or section 127 of the Communications Act 2003;
• Circumstances where an individual or individuals have been specifically targeted and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997;
• Social media use which could amount to a breach of a court order. This can include offences under the Contempt of Court Act 1981, section 5 of the Sexual Offences (Amendment) Act 1992, breaches of a restraining order or breaches of bail. In addition, those involved in court cases should also be alert to the potential for breaching confidence by disclosing their involvement in a court case or the facts or decisions that have become known during the case and must also be careful not to breach integrity requirements by commenting in any way about anyone else involved in the matter.
• which do not fall into any of the categories above and fall to be considered separately – for example those which may be considered grossly offensive, indecent, obscene or false as defined in the Malicious Communications Act 1988 and the Communications Act 2003 In addition, firms should be aware generally of breaches in relation to privacy and data protection.

Civil Issues

There are a number of civil issues which can arise from the injudicious use of social networking. The two most commonly encountered are copyright and defamation.

Copyright infringement online can occur easily and anyone using social media should always be conscious of the potential for breaching the copyright of another. Whilst it is common, and indeed usual, for users of social media to republish information via Twitter, Facebook, LinkedIn, Google+ and so forth, the intention is usually that the source for the material shared will be preserved and no copyright breach will occur.

The situation becomes different, however, where information from one website is copied and reposted as if it were original material by the person posting it. In these circumstances there could easily be an infringement of copyright and firms should ensure that partners and staff are aware of the limits to what they can do.

A slightly more contentious area is where Tweets are concerned. Normally, if a person posts a Tweet on Twitter then it is expected that the post will be Retweeted and no copyright issue arises. However, things are not so straightforward where a person copies a Tweet and then passes it off as their own. There is an argument for saying that this is a breach of the copyright of the original Twitterer, although there is debate as whether Tweets (which are limited to 140 characters) pass the test for originality and skill that is necessary for copyright to be asserted.

Under EU law the 2009 decision in Infopaq, where the court found that copyright may be capable of existing in a text extract of 11 words, would appear to support the fact that copyright can exist in a Tweet. However, it is unlikely that most Tweets would pass the “copyrightability” test – some minimum amount of originality being required under copyright law – although a collection of Tweets may meet the criteria to be copyrighted.

The other main area where civil issues may arise is that of defamation.

The use of social media as a vehicle for defamatory comments is a major threat to many businesses, not just law firms. It is essential that firms ensure that their partners and staff are aware of what constitutes a defamatory statement and ensure that they do not make or publish them using social media or any other form of online or offline communication. In addition, firms should have in place a policy for dealing with the situation where the firm itself becomes subject to a defamatory comment on social media. In most cases the firm will be able to report the offending item to those responsible for the site on which it has appeared and ask for it to be removed and may also consider further action against the offending party where they can be identified.

Reputational dangers

A further area for concern is that of reputational problems that may arise.

As has already been seen in relation to the Charlotte Proudman and Alexander Carter-Silk incident, an injudicious comment can very easily lead to reputational damage.

It is also worth bearing in mind that most things posted on the web create some kind of a record and that search engines are very good at finding those records and making them available. For that reason it is essential, therefore, that everyone takes steps to ensure that anything they post online does not damage the reputation of themselves or their firm. Whether it be pictures of a party on Facebook or comments about another person in a blog or web page, there are reputational risks for both the individual and the firm if those pictures or statements become generally known.

Employment and HR issues

We have already touched on three aspects of personnel and HR implications that arise from social media – namely bullying, discrimination and defamation. There are, however, some additional issues in this area, not least recruitment and the time wasting implications of social media.

So far as recruitment is concerned, many employers are starting to use social networking sites such as LinkedIn as a way to seek out candidates for jobs and similarly will use an applicant’s online profile to make decisions during the recruitment process . So far as the employer is concerned, if they are in any way relying on an applicant’s online profile they must make sure that they cannot be accused of being discriminatory in the factors which they take into account. Two ways in which this can occur is through social exclusion – not everyone has access to the Internet – especially older applicants – and through decisions made based on factors such as sex, disability, race, marriage, religion and belief, and sexual orientation. Firms must take care to record the criteria they have applied when making decisions based on a person’s social media profile so that they can refute allegations of unlawful bias.

So far as an employee is concerned, we have already touched on the issues under reputation and that is to make sure that the profile they portray to the outside world is the one which they would want prospective employers to see.

Anyone interested in finding out more may wish to start with the ACAS Research Paper “The use of social media in the recruitment process” which can be found at www.acas.org.uk/media/pdf/0/b/The-use-of-social-media-in-the-recruitment-process.pdf

As to the time wasting potential of social media, there can be few greater drains on time and productivity than employees who are overly obsessed with social networking. Here firms must take steps to ensure that partners and staff are not spending too much time on social media – even where they are allegedly engaged in activities for the firm. For that reason firms should define what is to be regarded as acceptable social networking activity within the work place and how it should be conducted.

There are a number of factors which create problems for employers in dealing with this. They include:

• the blurring of work and personal life – when is social networking activity for the firm and when is it for the individual?
• the ease with which social networking can be accessed – staff do not need to use a work pc or laptop – they can communicate using phones and tablets which they bring to work;
• flicking – in other words employees who keep flicking on to social networking sites whilst undertaking other work and thereby becoming distracted; and
• lack of access by the employer – many staff will not have employers and work colleagues as contacts so that their use cannot easily be monitored.

Firms may need to consider putting in place disciplinary processes to deal with those who abuse work policies on social media use.

Finally in this section just a brief mention for two further areas, namely privacy and freedom of speech.

If a firm wishes to ensure that its staff does not engage in social media activities during the working day, or if it wants to be aware of the content of emails and messages sent, then it should give due consideration to the rights of the employee, in particular rights to privacy under the Human Rights Act 1998 and Data Protection Act 1998. It is advisable, therefore, that if the employer intends to monitor the employee that they make the employee aware that they will be doing so and when this might be occurring and that they do not use any data which they collect as a result in any way other than in relation to the workplace and for the reason that it was collected.

Finally, the firm should always be aware of an employee’s right to freedom of speech set out in the Human Rights Act 1998. Although that freedom has to be balanced with other factors such as the duty of confidentiality owed to the client and the duty of confidentiality owed to the employer, nevertheless there is a move, at least in the USA, towards declaring Facebook posts to be legally protected speech, even for employees who write negative things about their employers.