Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.
A recent decision of a UK Labour Tribunal has upheld the dismissal of an employee for comments made on her Facebook page. The case demonstrates the increasing use of social media in the employer/employee relationship and the legal effects on speech.
The employee, K C Preece, was a shift manager at the Ferry Boat Pub where she was subjected to repeated verbal abuse by a group of customers. Miss Preece countered with an offensive response on her Facebook page in which she identified her abusers by name. A customer saw the comment and responded with a complaint to the employer, JD Wetherspoons plc.
JD Wetherspoons’ employment policy contained an internet provision prohibiting employees from posting comments that would lower the reputation of its business. The tribunal’s decision upheld the dismissal on the basis of this specifically-worded policy. Miss Preece admitted to contravening the policy, but responded by arguing that she intended her comments to be private as she believed they were visible to only a small number of friends.
The public versus private nature of speech in social media has become an increasingly recurring theme. The British Columbia NDP recently raised eyebrows when it demanded potential candidates surrender their Facebook login and passwords to prevent any unwanted surprises during the campaign. The measure was in response to BC provincial NDP candidate Ray Lam, who resigned from the 2009 electoral campaign when racy photos surfaced on his Facebook page. Party member Nicholas Simons argued that such a policy not only violates the privacy of the individual, but also anyone who has communicated with that account under the assumption that only the account-holder would view the content.
Privacy settings have been a major issue for Facebook users. The problem is exacerbated as communication traditionally reserved for more formal mediums is increasingly finding its way into electronic media. This is especially prevalent in the workplace: a Kelowna BC woman was recently fired via Facebook and in 2006 retailer, RadioShack, issued hundreds of layoffs to employees via e-mail. The potential ease of third-party access to sensitive information calls into question if there can ever be a reasonable expectation to privacy for comments and personal messages made via Facebook.
In Miss Preece’s case, the tribunal’s decision was guided by the obligation to abide by the employer’s internet policy, but often is the case where such guidelines do not exist. A recent labour tribunal case from British Columbia also upheld the firings of two car dealership employees, JT and AP, who had posted inflammatory Facebook comments. The case was complicated by numerous factors:
- The respondent employer was able to view the comments by being granted third-party access by a former employee who was mutual Facebook friends with JT.
- The inflammatory comments pertained to the employees’ attempt to unionize raising the issue of protected speech.
- The employer monitored the complainants’ Facebook pages for over a month in this manner and compiled all comments (a process that began on the day the application for unionization was filed; the employer was aware the complainants were in favour of unionization).
- JT was issued a warning in the interim for inappropriate behaviour, but the dealership did not mention the Facebook comments at that time.
The dismissals were upheld on the grounds that had an anti-union animus existed the employer would have acted sooner, thereby justifying the dealership’s explanation that the dismissal was solely disciplinary. The tribunal noted that the content of the postings were highly offensive and increasingly derogatory and that the employers’ delay in dismissing JT and AP could be ascribed to due diligence by ensuring sufficient cause for dismissal.
Numerous similar wrongful dismissal cases exist (see here, here and here), but the UK and BC labour tribunal decisions call into question how social media has changed the dynamic between public and private speech and whether existing juridical guidelines founded on traditional forms of speech still apply novel forms of communication.
6 Responses
I am certainly in favour of privacy, and it’s unfortunate that social media networks have raised a considerable number of privacy issues since their inception. Having said that, people must realize that information posted on the Internet is never truly private. How private can posting an offensive message about your employer on your Facebook page actually be if it can be read by hundreds of friends? Not to mention friends of friends or others reading computer screens over those friend’s shoulders.
Privacy settings are not perfect nor will they ever be. Users should not expect that comments made will be forgotten soon after they’re written or that they’ll only be read by those individuals for which the comment was intended. As technology improves and the world becomes an even smaller place people should be much more careful of where they post their opinion.
I agree that there can be little in the way of a reasonable expectation to privacy with electronic communication for the reasons you mention. Even personal e-mail and “private” messages are susceptible to third party access.
Problems arise when the casual norms of social networking intersect with the formal norms of the workplace, notably when complicating factors exist such as the unionization process in the BC labour tribunal case. When balancing the interests of the parties, the context of the speech is examined in order to determine if an employee’s comments could reasonably bring the employer into disrepute. In the BC case the speech was highly inflammatory, but it is not difficult to imagine a more nuanced set of facts. For traditional modes of speech we rely on an established set of norms, but for constantly changing technology these norms are in flux and establishing a standard becomes more difficult.
Increasing awareness of similar cases will hopefully ensure that when Facebook users decide to vent, they consider beforehand the substance of their speech. Conversely, employers can avoid frustration by utilizing a carefully worded electronic communication policy which no doubt simplified the decision in the UK labour tribunal case.
I think that such cases are an example of how our attitudes toward social media need to change. Many people are not aware of different privacy setting or simply do not feel that it is necessary to prevent others from viewing their profile. Perhaps people feel that they are protected by the anonymity of the Internet or simply have a “it won’t happen to me” mentality. It is easier to believe that our personal lives are still relatively private, even when we post details on Facebook or Twitter.
Constant awareness of the truly public nature of the Internet is the best defense. KC Preece’s case should motivate others to think twice about who could see information that is posted online. While social media is a great tool for sharing opinions, we must first think about whether or not we truly want all our views to be shared.
Danny is certainly correct that one’s reasonable expectation of privacy is necessarily diminished when expressing opinions in quasi-public fora like Facebook. As a result, it is highly unlikely that any such ‘posting’ or ‘re-posting’ of comments initially made to a limited number of Facebook ‘friends’ could ever fall under the statutory privacy torts in the provinces that have them or the embryonic common law privacy tort in Ontario. More than anything I think this points to the virtual pointlessness of using privacy law as a vehicle for labour rights vis a vis social media. When employees are at the effective mercy of contractual obligations such as those that referred to in the Wetherspoons case mentioned in the blog post, this indicates the troubling possibility of non-unionized employees having their non-employment related speech rights curtailed by their employer through threat of dismissal. As the other commentators have noted, while this certainly calls for due caution on the part of employees, one can’t help but feel such stories are likely to be an increasing occurrence in the coming years.
Well put, Stuart. One can argue that once you have posted on a public forum, or quasi-public as you’ve put it, you have waived any reasonable expectation of privacy pertaining to that comment. Especially with respect to non-unionized employees, it’s almost as if a lay person can be held to public figure (i.e. politician) standards.
I’m not sure I’d agree that any REOP is waived — one of the advantages of the REOP standard is that it is flexible, thus avoiding conflating privacy with secrecy. The problem from a legal perspective of course is that the REOP standard is one drawn from s. 8 jurisprudence, and therefore has less relevance (and less judicial commentary) as a standard in the civil context. But again, all this goes to say that I have a hard time envisioning any kind of privacy tort as useful as a mechanism for resolving labour related tensions that stem from use of social media. Legislative regulation is the only realistic option, but I think the chances of that actually occurring are negligible.
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