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Social media ‘disclaimers’ of little procedural value

The standard employee disclaimer on social media that “opinions expressed are my own and not those of my employer” is of very little value when it comes to breaches of job contracts, barrister Michael O’Doherty said yesterday.

Social media posts which breach employment terms and conditions and internet policies may lead to disciplinary proceedings and indeed dismissal, despite disclaimers, he said.

Speaking at a joint Media, Internet and Data Protection Bar Association (MIDBA) and Employment Bar Association (EBA) event at the Distillery Building in Dublin 7 yesterday (22 January), O’Doherty examined how reckless social media posts can expose employees to sanction.

His lecture explored the contours of an employee’s right to privacy and freedom of expression and the intersection with an employer’s right to monitor  employees’ social media accounts.

Competing rights

“Very often, privacy and freedom of expression are considered to be competing rights. Classically, privacy is very often pleaded by somebody whose rights may have been infringed by a media organisation,” he said.

Asserting a right to privacy as a defence may conflate constitutional protection with the privacy settings on a social media account, he said.

Case law had shown that companies can be very protective about criticism of their products, even if these take place in ‘private’ groups online, he said.

The Workplace Relations Commission (WRC) had rejected the idea of ‘private’ social media posts, limited to certain groups of people, he said, and said there is no guarantee that posts can be fully contained within a particular group.

'Naive'

It would be ‘naive’ to imagine any material posted on the web could be considered private, the barrister said.

“It only takes one person to screenshot and report comments on their own account for that material to be put out in public, O’Doherty said.

The author of ‘Internet Law’ also explored the distinction between social media comments about the poster's workplace, and posts which are an expression of opinion about an unrelated issue.

A very clear employer social media usage policy is essential, the event heard.

O’Doherty examined how an employer can prove that a social media post has “damaged their reputation” and what evidential level is required.

In her address, Cliona Kimber SC said that while the employee has privacy rights and is not a wage slave, on the other side of the fence the employer also has rights.

In some cases the courts have said that the employer may monitor social media posts and usage, she said.