Social Media & Handheld Devices - The Basics [Video]

Posted in : Back to Basics on 25 May 2016
Gareth Walls
A&L Goodbody LLP
Issues covered:

We all know that social media is a huge and complex area of the law. It's almost entirely unregulated, and therefore it's no surprise that employers are struggling with its impact in the workforce.

What I want to do in this short session then is merely attempt to do some of the basics to social media, and the way I'm going to do that is by looking initially at the contract and the policies which an employer must apply in relation to social media.


I want to consider supervision and monitoring of the workforce in relation to social media's use. I want to consider the overlap and the interaction between social media and all the policies that employers will be more familiar with such as bullying, harassment, disciplinary procedures, intellectual property, confidentiality, etc.

So traditionally, most employers will have their social media policy covered in an email and Internet policy. Or at least they hope they will, because most email and Internet policies don't really cater for social media in an appropriate way.

Social media develops so rapidly that, in reality, a policy should be checked at least six months and probably updated at that time. In the past also, the email and Internet policy was very easily policed by an employer, as traditionally the employer owned the desktop or the PC tower. They also owned the handset which an employee would use. Consequently the traditional policies would always reserve investigation rights. That was easily policed and allowed for the employer to check its policies and to check the employees' use of its products.

However, two things have fundamentally changed that approach. First is BYOD, or bring your own device, which has recently come into some popularity. The second is the predominance of handheld and personally owned devices.

In relation to bring your own device then, this is a situation whereby to avoid an employee using fairly unwieldy two devices for their life and work. It's where the employer allows the employee to use either the employer's devices bought and paid for, or indeed the employee can use their own device.

The difficulty with both of those concepts, of course, is that ownership is merged with ownership of content. Which becomes much more difficult in terms of information which is emailed to the device, calls put through, calls received, information downloaded from the Internet, access to buyers lists, suppliers lists, etc. That really makes it extremely difficult for the employer when it comes to intellectual property and managing confidentiality.

Plus, where the ownership is the employee's, in relation to the handset, then it's almost impossible to get investigation and access to the device without absolute employee consent. Moreover, investigations need to be frontloaded and much more speedy. Because an employee may well consent to delivering up the handset, but they won't deliver it up if the employer is going to take a significant amount of time dealing with it or, B), the employer is going to go beyond the range of their investigative remit and look at personal content.

So secondly, handhelds generally mean employees have access to online and web-based communications without using desktops or without using the traditional means. Consequently, that means that employees may engage in negative activity whether that is bullying, harassment, or inappropriate access of material on the Internet through their own handheld device.

They can cause employee employment difficulties within the workplace by simply showing the content on their personally owned device to a third-party or to a colleague employee, and thereby harass, victimize, and offend or bully the individuals in that way. Consequently we, as the employer, have much less ability to search and/or to police that kind of activity when it's used through an individual's device.

That said, it's always to be remembered that social media is generally a hugely positive thing. We take a view that any employee from this new generation of employees coming into the workplace is coming in with a ready-made network. That is to be fostered and encouraged, but is to be done so with caution.

Employees should be encouraged to use social media appropriately, to use the brand of the employer appropriately, particularly on Facebook or social media wherever they indicate where they work.

The general view should always be taken and communicated to staff that if the individual is not prepared to see what they may say on a billboard, which is right outside their office, with their picture, their home address, their name, and their telephone number on it, then they shouldn't post it and they shouldn't tweet it.

From the employer's perspective, how you deal with that really is in making sure that the email and Internet policy is reviewed and updated, as I've said before, at least on an every six-month basis.

Do you have to physically change it every six months? No, you don't. But, let's be honest. Whenever the repetitive change is such that you will have apps such as Snapchat coming in which have been used and abused almost from day one of introduction to the market, that is why the employer must keep on its toes in relation to review and updating of policy.

Social media awareness training should become an obligatory part of any induction policy and certainly an employer must consider the crossover social media policies with all its other policies. That's not just the disciplinary policy. For example, it's also the bullying and harassment policies, all of which are fairly traditional and well understood.

But also consider your confidentiality policies, intellectual property policies, and make sure that that's all addressed. For example, we don't like to think about employees exiting employment right as they enter employment. But nevertheless, if we are an employer that encourages, for example, use of LinkedIn, well let's consider who owns the LinkedIn policy, or who owns all the content within that and/or equivalent policies to LinkedIn and opportunities.

All in all, there are many, many issues within social media, some of which I've only touched on now. But all of which will be picked-up on in later sessions.

This article is correct at 25/05/2016

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Gareth Walls
A&L Goodbody LLP

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