Employees’ rights to privacy and to freedom of expression may not prevent them being dismissed or censured at work over their private social-media posts, an internet law specialist has warned.
Disclaimers at the top of a private social-media account stating opinions expressed were personal had “zero” value as a defence, Michael O’Doherty, a barrister, lecturer and author of Internet Law, also said.
He was speaking at an event in Dublin organised by two specialist groups of the Bar of Ireland: the Employment Bar Association and the Media, Internet and Data Protection Bar Association.
Entitled ‘Social Media Posts as Grounds for Dismissal’, the event last week addressed topics including cases involving disciplinary actions due to social-media posts, employer monitoring of employees’ private social-media accounts and the implications of employees expressing controversial opinions online.
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Mr O’Doherty said decisions of courts and tribunals here and in other jurisdictions exposed a “lack of clarity” about the degree to which employees could rely on the protected rights of freedom of expression and privacy when pursued by employers over posts the employees had made on social media.
The right to freedom of speech included speech that was contentious, heretical, unwelcome and provocative, provided it did not tend to provoke violence, he said. People often conflated the protected right to privacy with the privacy settings on their social-media account when those were “separate” issues.
He cited a British case in which a waitress was dismissed by pub chain Wetherspoons for Facebook posts criticising some customers who had subjected her to “a torrent of abuse”. While she argued the posts were only viewable by more than 600 Facebook friends, it was held the posts were in the public domain.
In a Northern Irish case, the dismissal of an employee for offensive comments suggesting a coworker was sexually promiscuous was upheld. An employment tribunal found the comments violated the dignity of his coworker and his right to privacy did not protect him.
In an Irish case, the Workplace Relations Commission (WRC) rejected arguments that an employer was not entitled to warn a picketing employee about comments made within a closed Facebook group of about 40 strikers. The WRC held it was naive to think postings on Facebook could be private, but found the employee’s suspension, and a final written warning, was excessive and replaced it with a first written warning.
Mr O’Doherty told the seminar that other relevant issues included how an employer’s reputation might be damaged by an employee’s post. When the public, and an employer’s customers in particular, took to social media to draw a link between a post and the values of the employer, such internet “pile-ons” had led to decisions upholding dismissals and terminations of contract.
Clíona Kimber SC, co-author of Cyberlaw and Employment, said employers had “great latitude” to examine employees’ social-media posts.
She said an employer’s ability to take action over employees' social-media posts was not limited to work settings. A post made in a private setting, even in a worker’s own time, may be acted upon if it impacted the employer, damaged their business or brought them into disrepute.
The barrister said case law stated that employers should have a social-media usage policy for employees which clearly stated what material would be monitored and the possible repercussions for any breach of the policy.
In an Irish case, an employee won a challenge to her dismissal over posting anti-immigrant material because the employer did not have a social-media policy, she said. That employee was awarded a small sum in damages and was not reinstated.
The Artificial Intelligence Act 2024, an EU regulation bringing in legislative measures to monitor and deal with different kinds of artificial intelligence (AI), “calls out” the ability of employers to use AI to monitor employees, she said.
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