in-house counsel masterclass: navigating the social network
TRANSCRIPT
In-House Counsel Masterclass Navigating the Social Network
Thursday, 7 March 2013
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Welcome
Emer Gilvarry Managing PartnerMason Hayes & Curran
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Philip Nolan Partner and Head of Commercial Mason Hayes & Curran
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Overview
The “Balancing Act”:→ Risk v reward→ Privacy v business interests
Key Issues→ Employee pre-screening→ Optimising SM technology for business→ Use and misuse
Implementing a social media policy
The Horizon→ Industry trends→ General Data Protection Regulation
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Opportunity v. Risk
Business benefits of social media:
→ Access to information→ Building contacts→ Identifying potential leads→ Engaging with consumers→ Dealing with complaints→ Advertising 2.0→ Information on potential hires
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Opportunity v. Risk
Social Media involves “opening up” the business and allowing free flow of knowledge. Creates risks:
→ Defamation→ Confidentiality→ Harassment→ Misrepresentation of company position
Business Challenge = Identify the benefits, measure the risks, and create a policy that best balances the two to create value
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Business Interests v Privacy
Exercising control over personnel
Copland v UK (2008) → European Court of Human Rights→ Employees have an expectation of privacy in
communications from work equipment (Article 8 EHCR)→ Employer violated this right by monitoring email, phone
and internet usage
Risks to company→ Loss of time→ Confidential Information→ Damaging statements
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Business Interests v Privacy
How to resolve?
→ Employee Notice (key in Copland)→ Proportionality
Consent is helpful, but not decisive
Business Challenge = Adopt a proportionate approach to monitoring, reflecting the risks
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Key Issues
Three typical areas where advice is usually required:
→ Can we use social media to screen employees?
→ Can we use social media to build the business?
→ How do we prevent social media misuse?
Formulating SM policy = forming a view on these issues.
Remember to seek internal advice
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Issue 1: Employee Pre-Screening
Question = Can we run background checks?
Online presence → key indicator of suitability for the role
Key legislation = Data Protection Acts 1988 and 2003
Public Information: LinkedIn, Twitter etc… → Generally permissible (Section 2A)→ Fair Processing Notice (Section 2D)→ Separate issue = using the data
Private Information: e.g. Facebook profile→ Common in the US→ Legislative response (at least 28 states)→ e.g. California Social Media Privacy Act
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Issue 1: Employee Pre-Screening
Can it be done in Ireland? Not expressly forbidden, first principles Obtain candidate consent (Section 2A Data Protection
Acts) Consent must be specific, freely given, and informed.
Risks Disproportionate processing? (Section 2) Likely regulator hostility Breach of Contract PR / reputational risk
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Issue 2: Business use of Social Media
Question = Can employees use social media to build the business
What social media use are we concerned about? → Not all social media created the same→ LinkedIn vs. Instagram
Different policies for different staff? → Marketing may require work access to Twitter→ Sales staff could rely on LinkedIn to find leads
Who is entitled to speak for the company on social media? → Marketing? → Executive Staff? → Internal pre-approvals through Legal?
These decisions should be reflected in policy document
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Issue 3: “Improper” Use of social media
Question = How do we prevent employees from abusing social media
What can we actually monitor and control?→ “Philip Nolan visited Facebook.com” → Logs do not generally disclose what an employee said
on a site. → Discuss this with IT
Are we concerned about timewasting? → Limit personal use outside of set times (e.g. lunchtime)
What issues should be we prohibit altogether? → References to business/clients→ Critical references to fellow employees→ Defamatory speech→ Discussion of company operations?
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Issue 3: “Improper” Use of Social Media
Exercise care to ensure that any restrictions on employees discussing the company do not inadvertently prevent activities that may benefit the firm, e.g. employees promoting favourable news stories.
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Implementing the “Social Media Policy”
Once position adopted on SM use; need to design rules.
Avoid undue focus on the idea of a “social media policy;” what matters is having effective, understandable and proportionate rules. Could be contained in: → Contracts→ An existing “acceptable use policy”→ On an intranet→ A dedicated social media policy→ Information updates
Consequences for non-compliance should be clear
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The Horizon: Key Trends
Employee IT issues will become increasingly more important over coming years.
Sits at the crux of two distinct trends:
→ Technology Developments: Convergence
→ Legal developments: General Data Protection Regulation
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The Horizon: Tech Convergence
Convergence of “personal” employee computing resources and business IT:
→ Consumer IT devices have leapfrogged Enterprise IT→ Google docs, Dropbox, iPhones, apps etc… → Developing “Bring Your Own Device” culture→ Netflix Audit recently found that employees were using 496
separate smart phone apps for work
Key risk = security of company data
Well meaning employees, but a risk to the business
Engage with IT department to develop rules
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The Horizon: General Data Protection Regulation
Draft Regulation, currently before Parliament and Council
Greatly strengthens the right to privacy
Numerous competing drafts
Key points:
→ High fines, 2% global turnover→ Possible loss of “legitimate interests” ground for processing→ Expressly suggests that “consent” will not justify processing in
the employment context
Will impact on all aspects of operations, but is likely to make employee monitoring more challenging.
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Summary
Social Media = An issue to be tackled, not something to avoided
Find the risk v. reward trade-off that best suits your business
Design a bespoke policy
Communicate it effectively
Keep an eye on changing trends
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Jeanne Kelly PartnerMason Hayes & Curran
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Overview
• Ownership and use of content on SM
• What steps should you take when harmful content is flagged?
• What defences are available?
Content: Ownership and Use
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• Third party? Interns? Safeguards needed
• Ownership of output
• Responsibility for content
• Transitioning to new provider?
• Responsiveness for breach/harmful content?
• SM Policies and SM own terms of use
• Need to be familiar with both law and internal systems of the SM page.
Brand Protection issues
• What can you say about your customer’s experience?
• What can you say about a competitor’s product?
• L’Oreal v Bellure
• Use of UGC?
Who gets notified?
• In-house counsel expected to be a “helicopter parent”?
• Managing expectations
• Have the numbers stored/reporting path agreed
• External/internal PR/Lawyers/Tech experts/Insurers
Content Case study
• Content that defames or infringes others rights is flagged to you
• Should it be taken down at all?
• Taking down
• If fails, legal steps
• Unmasking the culprit (Norwich Pharmacal)
• E-Commerce Regulations Art 18 Defences: Hosting
- No knowledge
• Acting expeditiously: different views of urgency?
• Similar concepts in Copyright Act 2000
• s27 Defamation Act 2009
Defence?
Risks inherent in monitoring? - Hilton case UK 2010
“The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation … makes it at least arguable that the service provided …. consisted of more than mere storage.”
Takeaways
• Take ownership of the interaction
• Be proactive for planning but reactive for incidents
• Understand the forum
• Know the SM terms and processes, or outsource
• SM policies
• Staff training
Elizabeth Ryan PartnerMason Hayes & Curran
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“Will the Highways on the Internet
become more… few?”
- George W. Bush
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• Social media to screen candidates
• Ownership of social media contacts
• Disclosure of confidential information
• Cyber slacking
• Social media – harassment and bullying
• Reputational damage
• Discipline and dismissal
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Overview
Use of Social Media to Screen Candidates
• Discrimination - nine grounds – candidates protected by Employment Equality Acts – age discrimination
• Gaskell v University of Kentucky – University believed that Mr. Gaskell’s “creationist views” conflicted with a job application
• Flexman v BG Group- upheld constructive dismissal claim
Ownership of Social Media Contacts
• 89.5% of employees use LinkedIn
• Hayes Specialist Recruitment v Ions - Court ordered
disclosure of contacts
• Penwell Publishing v Ornstein and Others – Court found
contacts to be property of employer
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Disclosure of Confidential Information
• NAMA – court injunctions - employee (and wife) to return
confidential information to NAMA
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Cyber Slacking
• O’Leary v Eagle Star – no negative impact on work targets
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Social Media - Harassment/Sexual Harassment/Bullying
• Employment Equality Acts 1998 - 2011
• Safety, Health and Welfare at Work Act, 2005
• Employer vicariously liable for acts of employees
• Morse v Future Reality - Complaint of sexual harassment
upheld
• Chevron Oil - €2.2 settlement of sexual harassment charges
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Reputational Damage
• Vodafone – video brought to attention of Vodafone by
Twitter user
• Dominos Pizza – Fired and faced with felony charges
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Discipline and Dismissal for use of Social Media
• Emma Kiernan v A-Wear – dismissal unfair
• O’Mahony v PGS Insurance - breach of Trust - dismissal fair
• Preece v JB Weatherspoon - Dismissal fair - freedom of
expression fettered
• Crisp v Apple - Dismissal fair - Image
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Take Away - Best Practice Guidelines
• Put a policy in place
• Implement a proportional monitoring system
• Ensure that employment contracts and restrictive covenants
are customised to deal with confidential information which
might be disseminated by social media
• Be careful when using social media to recruit employees
• Have a plan to deal with employee contacts generated by
social media on the termination of the employment contract
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Thank you
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