Defamation Social Media
14 March 2017

Mean tweets could get you fired: the dos and don’ts of social media law

Published on 14 March 2017

Jimmy Kimmel forcing celebrities to read mean tweets about themselves may make for great TV, but venting about colleagues or bosses on your personal social media might find you hit by legal action. Social media litigation is on the rise, according to Lawyers Weekly, particularly in employment law and compensation matters. Insulting comments may lead to defamation actions – even if your security settings ostensibly prevent unwanted scrutiny, courts may order you to allow access to your social media accounts should it be believed these accounts contain evidence relevant to a claim. To avoid falling foul of the burgeoning field of social media law, Insights has put together a checklist of ‘dos and don’ts’ to ensure your 3am tweets and posts don’t result in regrettable consequences.

Don’t discriminate – even in jest

Consider the worst possible scenario when it comes to who might view your profile. As a lawyer, this is likely to be your clients and your firm. As Dr Paul Hartigan, associate professor of marketing at the University of Western Australia’s business school told the ABC, companies spend a great deal of time and money building their reputation and are looking for employees and consultants that fit their brand.

“It depends on the company,” noted Dr Hartigan, “but if it’s a charity that works with women, people wouldn’t want to see sexist comments, even light-hearted [comments].

“Any company wouldn’t like to see offensive material towards different races, even comments about the environment, littering, carbon footprint; all those things could create embarrassment for you when you’re dealing with clients.”

Further, such comments may be in contravention of anti-discrimination law, including the Racial Discrimination Act 1975 (Cth) or the Sex Discrimination Act 1984 (Cth).

Hate your current job? Keep it to yourself

Venting online after a week of seemingly pointless meetings and ornery exchanges with co-workers and managers may be vindicating over wine on a Friday night, but it may also provide fuel for litigation ranging from workplace bullying to harassment.

This cuts both ways, however. For example, when Lorna Jane was sued by a former employee over workplace bullying claims, some of which occurred via social media, the company attempted to use social media to rally support via the hashtag #tellthetruth. This swiftly backfired; commentators regarded this as an employer using social media to bully a former employee. Not only did this result in further damage to the brand, but potentially reinforced the former employee’s assertions of a bullying culture.

Scrub those photos

This is perhaps the most obvious social media misfire. According to a recent employer survey run by CareerBuilder, about half of employers choose not to hire a candidate due to “provocative or inappropriate photos” or information posted to their profile.

Feeling libertine? Nobody needs to know.

According to a Social Recruiting Survey run by Jobvite, a recruiting platform, 83% of recruiters are turned off by references to illegal drugs (though 2% of those surveyed felt this was a positive trait.) The same goes for overtly sexual posts (70% of recruiters disapproved), while 66% of recruiters disliked posts containing profanity and over half would not hire a candidate who talked about guns on social media.

Interestingly, 44% felt posts regarding alcohol were “concerning.” However, it is important to draw a distinction between your real and digital life – while what you do privately is indeed your own business, posting publicly about the many stages of a pub crawl, accompanied by photos of excessive drinking, may not be advisable.

“[Companies] are lenient towards the behaviour but not towards the publication of it,” noted Dr Hartigan to the ABC. “I think companies would [question that] if they’re not aware to look after their reputation, will they be aware to look after our reputation?”

Beyond brand issues, public posting of bad behaviour – particularly with reference to illegal narcotics – could be used in evidence against you.