Employers are reviewing the way their employees interact with social media both at
work and on a personal level, and they are right to do so. However, this raises
complicated legal issues that must be handled carefully.
The legal implications
As a general rule, employers are liable for their employees’ social media activities if
this is done in connection to their employment. If their actions are in any way
injurious or abusive, may indicate discrimination, bullying, or is in way any illegal,
then the employer can and will be held accountable.
Client information is also at a threat with the use of social media as such data may
often be stored on external databases such as LinkedIn, Facebook or Instagram. If
the employee subsequently leaves the company, this data is at risk of being
misused, and the employer will have a lack of control over such data. It may be
worth considering prohibiting such practices or establishing a practice of creating a
work-related profiles for social media use that are closed after termination of
Additionally, employers often review employees’ own individual social media
channels to help them take decisions on whether to employ that individual, and this
raises questions on whether the individual’s privacy is being infringed, and even
whether this could lead to the person being discriminated against.
Consider establishing a policy for social media use that will clearly lay out the rules
as a clear guideline for all employees.
Managing your accountability as an employer
How can you as an employer control the level of culpability that could arise for the
way you and your employees use social media The following are some
recommended action points to implement:
- Clearly determine the employees that can have access to the social media
accounts that are operated in your company’s name.
- Make sure that these employees are clearly trained on acceptable and non-
acceptable uses of social media and guided on areas that may potentially
create legal or ethical issues.
- Delineation between work and personal use must also be very clear and strict
rules should be in place to ensure that the employer’s accounts are not
utilised for any actions being done on social media in the employee’s personal
- It should be clear to employees that action would be taken if rules and
guidelines are breached.
The use of social media when recruiting employees
Social media is often used by employers while recruiting employees. It is important
that you have the right processes in place to ensure that you do not infringe data
protection regulations. You also run the risk of infringing on the individual’s rights to
personal privacy or open yourself up to claims of discrimination.
An individual has the right to know what personal data is being gathered by an
employer while they are being recruited, whether this is collected from the applicant’s
social media profiles or from some other party. The individual also has the right to
know for how long such information will be kept, to review this information and is
entitled to ask the employer to amend or delete such information at any time.
Employers should establish set policies outlining clearly how long any data collected
from the applicant’s social media profiles for the recruitment process will be retained,
creating clear guidelines on whether such information will be utilised to assist in the
decision-making process. It should also state that any data gathered from the
individual’s social media presence will be deleted once the vacancy has been filled.
Establishing disciplinary measures for social media use or misuse
The individual’s social media profiles are governed by personal privacy regulations
and employers should thread with caution to avoid infringing such regulations, and
the employee’s rights in this regard.
Once again, the importance to have a clear-cut and transparent set of rules and
guidelines on social media policy comes to the fore. This must also include the types
of behaviour that is frowned upon or is regarded as completely unacceptable to the
employer. It should also be made clear that definitive action may be taken by the
employer against the employee if rules and guidelines are breached.
It is legally accepted that employers can take action and issue disciplinary warnings,
and in extreme cases, can even terminate employees if they use social media in a
way that may damage the employer in any way.
If in doubt, seek legal advice as this is rarely a clear-cut area to handle.