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.
Click here to subscribe to Stewart McKelvey Thought Leadership.
Archive
Nancy Rubin, QC and Sam Ward Background Wiseau Studio, LLC et al. v. Harper et al.1, a recent decision authored by Justice Schabas of the Ontario Superior Court of Justice, is not just a terrifically…
Read MoreJoe Thorne and Madeleine Coats On Friday, May 8, the Supreme Court of Canada released its unanimous written decision in 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10 (the “Decision”). The case was…
Read More*Last updated: May 12, 2020 (Originally published April 29, 2020) Kathleen Leighton On March 19, 2020, the Province of New Brunswick declared a state of emergency in relation to the COVID-19 pandemic. On March 25,…
Read MoreMurray Murphy, QC, CPHR, and Charlotte Jenkins Mental health impacts of COVID-19 The mental health impacts of COVID-19 have been, and will continue to be significant and wide-spread around the world. Individuals are continuously required…
Read MoreNancy G. Rubin, QC and Erin McSorley In response to the immense public health and safety challenges posed by the COVID-19 pandemic, Courts across the country have modified their practices and procedures. This article provides…
Read MoreKathleen Leighton On March 18, 2020, Newfoundland and Labrador declared a public health emergency as a result of the COVID-19 pandemic. While a declaration of public health emergency is in effect, the Chief Medical Officer…
Read MoreBrian Johnston, QC and Brittany Trafford Governments and employers are strategizing ways to open economies, businesses and services following unprecedented closures around the world.1 In Canada, each Province is taking its own approach and various…
Read MoreStephanie Stapleford, Andrew Burke, Mike Carver, Matthew Craig and Divya Subramanian Part 1: Virtual shareholders’ meetings The escalating COVID-19 crisis, and federal, provincial and local governments’ directives for individuals to comply with social distancing policies,…
Read MoreKimberly Bungay In the spring sitting of the legislature, the Nova Scotia government introduced Bill 226, which amends the Companies Act (the “Act”) to require companies incorporated under the Act to create and maintain a…
Read MoreCatherine Lahey, QC, Iain Sinclair and Robert Bradley The Province of New Brunswick declared a State of Emergency on March 19, 2020 related to the COVID-19 pandemic and issued a Mandatory Order stipulating restrictions on…
Read More