How employers can protect themselves with respect to social media

Grant Machum and Richard Jordan

In an earlier article, we considered an employer’s options when an employee departs and takes with them the social media contacts they have obtained during the course of their employment.  We concluded, with reference to the emerging case law on this topic in the United States and the United Kingdom, that an employee will generally own their social media account, even where an employer has suggested creating the account or where the departing employee permits other employees to use or maintain the account for them.

This article provides some suggestions as to how an employer can create a policy to ensure that it owns its social media accounts and reduce the risk of engaging in litigation with a departing employee with respect to social media contacts, connections and followers.  In addition, it provides some tips regarding social media policies more generally.

There is no one-size-fits-all social media ownership policy or social media policy; an employer must craft an individualized policy based on many considerations, including the nature of the employer’s business, the workplace environment and whether the employer encourages or discourages the use of social media.

1. Social Media Ownership Policy

Employers should consider establishing a written policy regarding the employer’s ownership of social media accounts created or used by employees on behalf of the employer.  Such a policy may:

• Define social media;
• Establish that the employer owns the employer’s social media accounts, including content, friends/followers, usernames and passwords;
• Confirm that the administrative rights to an employer’s social media accounts should be limited to certain employees with the permission to post, with the log-in information stored in a secure database which the employer controls;
• Provide guidelines with respect to the appropriate use of an employer’s social media account;
• Integrate an employer’s social media ownership policy with other policies, including polices with respect to confidential information;
• Outline what happens to an employer’s social media accounts when an employee with administrative rights departs; and
• Ensure that the Company’s use of any social media platform complies with all applicable laws, and each website’s terms and conditions and privacy policies.

2. Social Media Policy

More generally, employers should consider establishing a written policy regarding the appropriate use of social media in the workplace.  Such a policy may:

• Define social media;
• Specify who is bound by the policy;
• Distinguish between an employee’s personal use of social media versus an employee’s use on behalf of the employer;
• Specify whether/when the personal use of social media is acceptable at work;
• Confirm whether the employer will monitor the employee’s social media and/or internet use at work;
• Outline the risks to an employer from the employee’s use of social media, including damage to an employer’s reputation or the unauthorized disclosure of confidential information;
• Confirm that workplace rules and policies which prohibit harassment and bullying and protect human rights extend to an employee’s online presence and that the use of social media and inappropriate online comments outside the workplace may lead to discipline;
• Provide guidelines with respect to the responsible use of social media by employees, including the non-disclosure of confidential and/or client information;
• Identify whether any legislation applies to the collection, use or disclosure of personal information in the workplace;
• Ensure that an employer’s social media policy is integrated with an employer’s other policies;
• Specify the consequences for violating the policy; and
• Provide for an annual review of the policy by employees.

We would be pleased to assist with the development of your social media and social media ownership policy.

This update is intended for general information only. If you have questions about the above information, or would like assistance with the development of your social media and social media ownership policy, please contact a member of our Labour & Employment group.

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