Sunday, 13 January 2013

Navigating compliance: Employee rights and social media policies

As we navigate our way through new media compliance, an issue that is set to continue in its development in 2013 will be the legality and content of corporate social media policies; particularly insofar as employee / employer rights are concerned.

In the United States, the National Labor Relations Board (NLRB) is the independent body responsible for employee rights. It prevents and remedies unfair labor** practices, much like South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA). However, the NLRB’s mandate is far broader than the CCMA.  In addition to the protection of labor rights, it is also tasked with the organization of, and determination whether unions will act as employee representatives in the workplace.

In any event, differences notwithstanding, both independent bodies have recently considered a growing amount of labor disputes relating to social media policies in the workplace. The leading case in South Africa is Sedick & another v Krisray (Pty) Ltd [PDF] and has been quoted with approval in the recent, similar CCMA matter of Fredericks v Jo Barkett Fashions [PDF].

In the Sedick matter, two employees, an operations manager and bookkeeper, were dismissed for bringing the employers name into disrepute in the public domain by posting derogatory comments about management on their Facebook profiles. Two employees were dismissed and one given a final written warning. The procedural and substantive fairness of the two dismissals was tested before the CCMA and this matter appears to be followed in all subsequent matters of the same ilk.

The full case is available in the PDF links above, but a useful summary of the matter and synopsis of new media issues in South African labour law can be found on this 2011 CCMA Commissioners Indaba PDF document.

The dismissal arose from messages posted on the operations manager’s Facebook profile. There was no social media policy in the company. Evidence revealed the employees failed to adjust the privacy settings on Facebook and had “open” profiles, which could be viewed and accessed by anyone on the internet, including clients, suppliers and fellow employees. The commissioner ruled that the two employees who were dismissed “abandoned” their right to privacy contained in section 70 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act. Accordingly, the dismissal was procedurally and substantively fair in a labour context in South Africa.

It is important to note that the CCMA is not binding on High and superior courts in South Africa. Although this matter will probably be referred to in the first meaningful case before the High Court, it is likely that a deeper analysis of the law will be conducted.  We wait patiently…

In any event, although I agree with the findings and result of the matter, I disagree with the rationale used by the commissioner in arriving at the outcome.  Under the heading analysis of the evidence and argument, (paragraphs 47 to 52) the Commissioner decides that the Regulation of Interception of Communications and Provision of Communication-Related Information Act is the first point of departure in a privacy issue of this nature. He places great emphasis on the selection of privacy settings within Facebook, and concludes that the internet (and everything on Facebook), largely, is in the public domain where one cannot expect privacy. The Commissioner also notes that although actual damage to reputation was not proved, the potential was there.

Within the South African regulatory framework the approach used by the commissioner is probably incorrect. In South Africa, the Constitution is superior to all other legislation. This is trite. As a result, in my view, any analysis relating to the right to privacy must start with the constitutionally enshrined right to privacy.  We have a balancing of rights here – the competing interest of free speech, the right to privacy versus right to reputation, dignity, amongst others (within a labour law context).

Moreover, the Electronic Communications and Transactions Act (which includes its own privacy sections) may be considered. The overly broad assessment relating to Facebook privacy and the public domain is far too simplistic. Moreover, within a labour law context, dismissal is the most severe of sanctions – if this route is to be taken in matters of this nature, the mere potential for damage is probably not enough.

Further, in August 2012, Facebook settled a class action suit with the United States Federal Trade Commission (FTC) on an issue relating to privacy on Facebook.  It was said Facebook were deceptive and unfair with privacy. Facebook founder and CEO Mark Zuckerberg acknowledged that the privacy settings needed to evolve as the platform grew to a wider audience. Millions do not even access the privacy settings or know they exist, with only a reported one third of users actually accessing the setting at all.

The internet has evolved from Web 1.0 to Web 2.0, basically meaning we have gone from static, non responsive stilted web content to pages that are dynamic, participative and encourage sharing and posting of fresh content.  Another way of looking at it is passive viewing to active participation. Privacy has become one of the key issues in new media and internet law - the idea that everything on Facebook is in the public domain is not correct.

Unlike foreign precedent, particularly in the United States (see below), there was no mention of social media policies in Sedick. Although a social media policy may not negate a hearing at the CCMA or a matter proceeding to the High Court, it is advisable for all companies, large and small, to have an accurate and relevant social media policy in place.

Ultimately, whether there was a subjective expectation of privacy in the Sedick matter, the objective test used in South Africa to determine a right to privacy (whether the expectation of privacy is legitimate in the circumstances) would render the same result in this matter. However, it is concerning that this case appears to be approved and followed; a variance in facts may well lead to a different conclusion.

In the United States labor protection is governed by, amongst others, the National Labor Relations Act (NLRA). Section 7 of the NLRA is the key section.  It defines a “protected activity”, and for the purposes of a labor dispute in a social media context, this talks to protecting free speech on various social media and new media platforms. 

The United States is a world leader in the protection of civil liberties and the concept of free speech, protected by part of the First Amendment to the United States Constitution, is jealously guarded. Although section 7 of the NLRA was intended to protect speech relating to concerted activities for the purpose of collective bargaining or other mutual aid or protection it is being interpreted in a far wider context. However, this right is clearly not absolute and only protects certain type of posts on social media platforms. The global approach to social media disputes of this nature (usually some form of Facebook defamation or employee rant) has a certain amount of cohesion, regardless of jurisdiction.

In the second quarter of 2012 the Acting General Counsel for the NLRB released an “Operations Management Memo” [PDF] dealing exclusively with policies governing the use of social media by employees.  This follows two earlier management reports and a further raft of disputes pertaining to employees’ rights insofar as social media at the workplace is concerned.

The main thrust of the Operations Management Memo was this; the rules on the use of social media and communicating confidential information are overbroad. As noted by many digital law experts, accurate and relevant social media policies are essential.  The nature of each policy will clearly differ per region, industry and various local laws.  Although online resources for social media policies are useful, a carefully worded policy that is relevant is something worth investing in to get right.

The South African precedent dealing with social media labour disputes primarily analyze whether a mode of dismissal is procedurally and substantively fair. Conversely, the United States case law is probably the most advanced, partly due to the social media labor dynamic being around longer, and partly due to socio-economic factors. Although there exist clear differences in interpretation and wording of law, the NLRB decisions are indicative of the future of social media policies and recent cases show a pro-employee, pro-new media free speech approach.  

A global survey, “Social Media in the Workplace Around the World 2.0” [PDF] reveals that the implementation of a policy dedicated to social media is best practice number one. The survey was conducted across 19 countries at certain multinational businesses. The research revealed “a surprising degree of commonality across jurisdictions as to best practices”.  

In any event, practically, what are the key points to consider in formulating a social media policy? To date, regardless of jurisdiction or applicable laws, there are several areas that must be covered. As stated above, and by all experts in this area (labor and commercial), policies involving technology must be worded tightly and reviewed regularly in light of the dynamic environment. The following areas must be considered:
  • Employee rights
The NLRB and many employment bodies worldwide are increasingly pro-employee and mindful of civil liberties. When excluding conduct or prescribing behavior do so in a narrow sense. The latest management memorandum for the General Counsel for the NLRB specifically berates many corporates for the “overly broad” social media policies. See the Karl Knauz Motors, Inc and Banner Health System cases. Some attorneys have seen this as an attack on “very common workplace policies” in favor of free speech; be that as it may, it is the most important consideration to be borne in mind.

  • Collaborative Approach / Company Values
As with the internet, business is evolving. Best practice in drafting a social media policy is to create a task force or working group.  Include the company vision and values – make it a unique, relevant document. The use of social media varies across age, culture, ethics, religion etc. Take the different views on board.
  • Ownership of Social Media Accounts
If your business model requires employees publishing on social media platforms, define clearly who “owns” the account, username and password. Prescribe clearly the rules for use and liability (see below). See PhoneDog v. Kravitz.
  • Liability
Consumer Protection in social media is upon us. Consumerism will dictate that interaction must be fair and reasonable at all times, including full disclosure. Policies must take account of the legislative framework applicable for the particular jurisdiction and ensure this is properly considered.
  • Privacy / Confidentiality
Privacy has become the watchword for the internet generation.  As more and more conduct their lives digitally, the importance of securing their information is paramount.  This cultural shift has seen data and privacy legislation enacted globally. Ensure your policy speaks to these two key elements.
  •  Appropriate Use
Think of this in simple terms - what to say, when to say it, who to say it to, who to represent the business, what platform, what content checks, what type of responses.  As noted above, if behavior is limited or excluded, draft this in narrow terms. As suggested by American attorney Glen Gilmore, create a decision tree.
  •  Emergency / Feedback
Have a sense of who will say what when the proverbial sh1T hits the fan. Woolworths’employee policy was severely criticized on social media at the back-end of last year and this is a good example of how not to handle a social media crisis. Keep in mind the immediacy of the platform, the fact that you can correct any misconception, publish anything you want to rectify the situation and it will reach millions, instantly. It also keeps working while you sleep. Understand what sort of feedback you want to provide in normal business as usual situations and who will provide the feedback. Refer to a decision tree.
  • Communication and Accuracy
The policy should be a living document. Constantly update and review it, the law is dynamic. Communicate the policy to all members of staff, preferably with a face-to-face discussion and explanation. If you are a large corporate, risk averse red tape may get in way of the immediacy of the platform – work around it, or work with it.
  • Training
Twitter libel and defamation is a real possibility, as are various types of legal actions, depending on your industry. We are all living in an age of consumerism, dealings must be fair and honest. Understand the potential risks, particularly if your business model is a regulated profession. Training of key staff members on the wide variety or benefits and risks of the various platforms is probably a given by now, but go beyond the superficial. Make the training and how-to seminars relevant to the business and its vision. Once the right processes and training is in place, the company should avoid most liability and it will be hard for an employee to avoid accountability when negligent.

The nub of it is this; a social media policy is now regarded as best practice and essential. In the United States, the jurisprudence focuses on labor rights in the free speech context.  In South Africa, the law is yet to develop and the focus is on whether the mode of dismissal is fair, focusing on procedural and substantive fairness with a superficial and over-simplified analysis of the law.  Although both jurisdictions have similar considerations, the manner in which they decide on disputes of this nature is diametrically opposed.  Be that as it may, regardless of jurisdiction in a social media labour dispute, the considerations will be similar and the rationale used produces similar results.

** Apologies to those who prefer the spelling labour

Tuesday, 8 January 2013

Legal Social Media Roundup 2012

If you consider Google trends (screenshot below), it gives one a sense of the enormity of growth in social media over the past decade.  The onslaught of technology and a culture of instant communication have forced legal systems to adapt. Nimble and dynamic are not the type of words you would typically associate with the tradition and formality of law, however, the global legal systems have adapted, and in some cases, change has been dramatic.

Google trends social media
Google trends on social media

The digital world is evolving.  Large corporate entities view social media as a key part of a marketing or sales strategy with spending in this environment at all-time highs.  For a useful view of the 30 largest corporate advertisers on social media in 2012, look here.

The trends insofar as Google search may be slowing, or even flattening, but there is no going back now. The next few generations are taught on iPads, eat meals with a Blackberry and become familiar with technology and smart phones from an early age.  The pressing need to be bigger and better has infused technology into everyday life; the effects appear irreversible. Service of legal process via Facebook, the American Bar Association amending its professional rules of conduct, Samsung v. Apple turf war, multi-million dollar civil defamation awards and jail time – 2012 was a year of rapid development in the digital legal environment.  The training wheels are off and we are now moving at a rapid pace. 

1. Formal recognition of social media

One of the most respected legal institutions globally, the American Bar Association (ABA), has amended its professional rules of conduct to incorporate social media.  Lawyers are taking instruction on social media, using social media in preparation and discovery and liaising with clients (and potential clients) online.  The playing field is changing and the ABA appear alive to the nuances of social media.

In addition to the formal rules change, the ABA has released a practical guide to social networking for lawyers and has a vast resource section with many useful links.  Social media is no longer a nice to have or a “young thing” not relevant to certain individuals.   I would imagine that bar associations around the world will follow the example set by the ABA.

2. Service of legal process

Technology and law do not always sit comfortably together.  The nature of technology is diametrically opposed to that of law; one is measured and steady, the other is rapid and dynamic.  Consequently, certain jurisdictions have been (and continue to be) reluctant to adapt to changes in communication and technology.  However, in the last few years we have seen certain courts accept service of legal process via Facebook, electronic exchange of pleadings, internet streaming court coverage and many other technological advances.

South Africa took its own digital legal leap forward in this space in August 2012 when the Kwa-Zulu Natal High Court, in the matter of CMC Woodworking (Pty) Ltd v. Pieter Odendaal Kitchens, decided that service via Facebook can be appropriate in certain, limited circumstances.  This follows the global approach adopted by the USA, UK, New Zealand, Canada and Australia.  Worldwide, the jurisprudence in areas involving technology and law are developing quickly; largely the development is just about keeping pace with modern society.

3. Social media in discovery process

Given the vast swathe of users that now populate the Facebook servers, the information posted, uploaded and commented on is no longer restricted to the entirely mundane and irrelevant.  Frequently, this information (whether status update, photo, tags, comments) is being called on for the purposes of proving or disproving litigious matters.  It is a delicate debate that basically boils down to relevance of material versus privacy (right not to be annoyed, embarrassed, oppressed).

In July 2012 in the matter of Trail v. Lesko, a United States court in Pennsylvania had occasion to carefully consider the issues relating to the scope of discovery of social media (particularly Facebook although the principals articulated can apply to any platform). 

The nub of the debate is that a platform such as Facebook is inherently public and a user’s personal information is inherently private. A user’s right to privacy will usually override a discovery motion for social media UNLESS the party to proceedings can show that the information sought would assist (the use of the word assist is broad, and the information sought must be necessary and material) the requesting party in presenting its case. 

In an articulate and well-reasoned opinion, Judge Wettick notes that the “consistent train of reasoning” found in the case law is to require the party seeking discovery to point to facts suggesting that relevant information may be contained within the private portions of a user’s Facebook profile.  Additionally, metadata (technology based information verifying certain facts or documents) may also be requested in the discovery process and I anticipate this becoming commonplace.

It is important to keep in mind that courts will not allow open ended “fishing expeditions” nor will they simply allow access to a Facebook profile because it exists or because there may be useful information.  The scope of social media discovery will be limited, and will only be permitted if the requester can show that the intrusion of privacy is justified in the circumstances (circumstances will change on a case-by-case basis).

4. Social Media Defamation

The law of defamation has coped with the transition from paper to digital without the need for amendment.  The consequences for the publication of a defamatory statement, whether written with ink on a newspaper or typed on a laptop keyboard, are the same; as a result, defamation on social media platforms has been on the rise.

The apparent anonymity of the internet often means that people do not think clearly before posting a rash comment on social media platforms.  If you are comfortable saying something in front of a crowd of 40 000 people, then post it on Facebook or Twitter, if not, rather leave the thought in your head or potentially face a Facebook defamation action.

The Lord McAlpine Twitter (former conservative leader from the United Kingdom) issue provides a poignant example of social media posting gone wrong in 2012.  The former Tory MP was accused of being a pedophile on a BBC documentary.  This prompted a raft of Twitter users, as well as a morning television show host, sharing the story and commenting on the alleged pedophile.   

As it happens, Lord McAlpine did not take kindly to the allegations and settled libel matters with both the BBC and ITV.  His attorney confirmed that, at the time, there were 1000 libelous tweets (posts) and 9000 retweets (forwards) on Twitter; all of which could potentially result in libel actions!

The potential for defamation actions is enormous with the now commonplace “Web 2.0” technology.  Basically, Web 2.0 is a reference to technology used by websites which give users the ability to dynamically post and upload information.  In the past, web pages were static whereas in today’s environment, most web pages allow photographs, information to be uploaded and dynamic interfaces; the best example of the new methodology is social networking sites such as Facebook and Twitter.

Lastly, the monetary damages one may be liable for in a defamation claim online are substantial. In April 2012, a couple in Texas were awarded 13 million dollars for child molestation claims made against them.  Obviously, the severity of the comments and circumstances of the particular matter will dictate the amount of damages a competent court awards.

5.  Criminal liability for comments on Social Media

In the midst of a heated English Premier League football match between arch enemies, a 15 year old boy posted racially offensive comments on Twitter and was arrested for a racially aggravated public order offence.  He was released on bail.

This is not the first time this has happened, and certainly will not be the last; in 2012 potential jail time for comments and conduct on social media started becoming a reality many cannot even fathom. A Welsh student was sentenced to 56 days prison time for the same offense in early 2012.

2012 has been a year of material development for the digital legal world.  Social media is now formally recognized and technology is steadily infiltrating the global legal system.  It is now a matter of “when” and “how” and not “if” and “why” insofar as technology and law is concerned