Social Media Monitoring

Social media is a powerful medium. It allows people to connect anywhere in the world, share information, builds, and connects communities as well as educate and serve as a tool to promote business.  However, it also has a downside as trolling, cyber bullying, and data leaks become common.

The challenge and risk arising from social media builds a strong argument for why employers should take responsible and reasonable steps to manage.  This article considers why monitoring employees’ social media is important, the disadvantages of doing so, how it can be achieved fairly and the legal considerations for doing so.

Why monitor employees’ social media?

There are many valid and justifiable reasons for monitoring employee’s social media:

• To protect the interests of the company and its confidential information
• To maintain business reputation
• For marketing and advertising purposes
• Safeguarding employees against online bullying or harassment
• Monitoring employees’ performance and productivity
• Ensuring compliance with post termination restrictive covenants
• Managing any misconduct arising from social media.

It is for each organisation, considering the context in which it operates, to carefully consider why it is appropriate and necessary to monitor social media, as it does not come without risk.   This would become the business case not only to explain to your workforce but to also help defend any legal challenge.

What are the disadvantages of monitoring employees’ social media?

There are of course disadvantages of monitoring employees’ social media:

• It can create a “big brother” culture where people feel they are being continuously watched, leading to poor engagement.
• Employees may feel they have no privacy at work
• It can signal a lack of trust
• There are legal issues associated with monitoring, such as human rights issues.

How do you monitor employees’ social media?

Having established a need for monitoring, we would advise on an approach which considers the following:

• Undertake a data protection impact assessment from the outset and before developing any processes for monitoring. A data protection impact assessment must be undertaken whenever any type of processing of data that is likely to result in high risk to a person’s rights and freedoms
• Once a data protection impact assessment is carried out, having a sound policy in place will be vital and it is important to be clear with employees on what you do, how and why. A policy should include its overall purpose (which links back to your rational for managing social media), general rules and expectations, what happens in the event of the policy being breached and links to related company policies, such as Bullying and Harassment Policy and the Disciplinary Policy
• For employees who are required to use social media as part of their role you may wish to include a specific clause setting out the requirements and expectations relating to social media or direct them to the relevant company policy. For all other employees, a general standard clause setting out IT use will suffice, referencing any specific company policy.
• For most employers, monitoring external postings from time to time and on an ad hoc basis is sufficient. However, inappropriate social media use may also be highlighted by a customer or another employee. In which case, this would be sufficient grounds for you to explore further and may then result in a grievance/disciplinary investigation.

What are the legal considerations when monitoring employees’ social media?

Monitoring social media is not risk free.  The legal issues arising from social media are not new (harassment, bullying, confidentiality breaches) they are just in a different context.

Human Rights Act 1998

First, you have the Human Rights Act 1998 (HRA).  The two most important rights relating that may be relevant with monitoring of employees is article 8, the right to respect for private and family life, home and correspondence and article 10, the right to freedom of expression.

There are exceptions where an employer can be permitted to interfere with these two rights.  First, in terms of article 8, it must be a reasonable expectation by the employee to have right to private and family life.  So, where an employee makes a derogatory comment on social media that is publicly available, they cannot expect to be protected by article 8.  Regardless of them making the comment outside of work and in their own time.

To be permitted to monitor it must still be necessary and proportionate in the circumstances.  In respect of article 8, then it can be permitted if it is necessary for the protection of the rights and freedom of others and in respect of article 10, it can be permitted where it is necessary for the protection of the reputation or the rights of others, or to protect the disclosure of information received in confidence.  Others can include employers, colleagues, and customers.

Implied duty of trust and confidence

It is important to be careful that through monitoring, the organisation does not breach the implied trust and confidence of the employment relationship.  This is about organisations not conducting themselves without reasonable and proper cause.  It requires treating employees with respect and civility and to not treat employees in a wholly unreasonable manner.

Data Protection

When monitoring employees’ social media, there is still a requirement to conform to data protection regulations.  Taking recruitment, whilst a candidate’s social media profile is public, it must not be assumed by the company that they can inspect if for their own purposes.  There must be legal grounds for processing the data.

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