by Raffi Varoujian

Created on: July 28, 2011   Last Updated: July 29, 2011

The law has struggled to keep up with the rapid development of technology and the fundamental change in the way society communicates. The last thirty years have seen the mass introduction of PCs into the workplace, the advent of email and messaging, the rise of the Internet, and latterly, the explosion of on-line user-generated content, such as blogs, Twitter, and Facebook.

Social media has given the ordinary person a voice, as well as an audience that is infinitely larger than the physical, “off-line” social circle. It has never been easier to express opinions, share experiences and keep up to date with friends and family. The relaxation of attitudes to social media in the workplace has allowed employees the freedom to access previously restricted sites during work hours.

The balancing act for the employer is between keeping employees happy and managing the legal and reputational risk of granting such access. It is very easy to forget that what is illegal off-line, is generally illegal on-line. Although the law is still catching up when it comes to addressing on-line user-generated content specifically, existing law is being used to good effect to regulate and enforce rights on the Internet. Following are some examples.

Confidentiality

An employee will generally have a duty to keep sensitive information relating to the company confidential. More specific obligations are likely to be set out in the employment contract. As such, an employee who discloses sensitive or unflattering information, or leaks financial information during a closed period, is very likely to face disciplinary action from their employer, especially if it causes significant damage by getting into the mainstream. In some cases, the behaviour may amount to gross misconduct, resulting in immediate dismissal.

Derogatory comments

Making derogatory comments about customers or employers can get employees into hot water. Although there is an implied duty under the law not to bring an employer into disrepute, an employer would be better off explicitly stating their policy on such behaviour in the employment terms. Otherwise, there is a substantial risk that the decision to take disciplinary action could be challenged by the employee in an employment tribunal.

Recent developments in the US suggest that employees are entitled to talk about their managers, working conditions or their company on-line, much in the same way as they would do at the water cooler, or over a few drinks at the bar

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