blake lapthorn's in-house lawyer and decision makers' forum

Social Media and Confidentiality

Nicola Diggle and Mike Wilson

17 September 2013

Social Media for BusinessesOpportunities, Risks and Strategies

Nicola Diggle

Associate, Commercial Litigation and Dispute Resolution

The Social Media Revolution

A revolution in the way business and customers communicateOne way communications such as press releases are becoming “old hat”Speed of development of use of social media outstrips corporate risk management capabilityOnline chatter memorised in disclosable formCommercial opportunities and risks with using social media for businesses

Risks to Commercial Organisations

Damage to reputationActions for defamationContravene advertising regulationsVicarious liability for acts of employees e.g. discrimination and harassmentBreach of confidence Infringement or compromise of IP rightsBreach of Data Protection ActEmployee issues and claims Jeopardise legal privilege between Company and IHLBreach market abuse rules

Defamation and Malicious Falsehood

Statement is defamatory if it lowers the claimant in the estimation of a right thinking member of society, it identifies the claimant and is published to a third partyVarious defences are available Defamation Act 2013 not yet in force Malicious Falsehood involves a published false statement which was published maliciously and causes damage

Advertising Regulations

Advertising Standards Authority CodeConsumer Protection from Unfair Trading Regulations 2008Business Protection from Misleading Marketing Regulations 2008E-Commerce DirectivePassing-Off

Vicarious Liability

Underlying act complained of must be unlawfulThe act must be so closely connected with his employment that it would be fair and just to hold the employer vicariously liable.

Breach of Confidence (1)

To protect personal confidences, trade secrets, literary confidences and state secretsRequires information which is confidential (not in public domain)The information must have been imparted in circumstances which impose an obligation of confidenceMany duties of confidence also contractual, e.g., employment contracts and NDA’sDuties can also be impliedDuties often survive termination of relationship

Breach of Confidence (2)

Breach of confidence involves the unauthorised use or disclosure of confidential informationCourt remedies are injunctions, damages or account of profits and delivery-up or destructionDamages for breach of privacy have a different framework

Using Social Media in Disputes and Litigation

Service of Court documents using Facebook and TwitterDisclosable documents available online?“Norwich Pharmacal “ Orders

Strategies

Keep abreast of what your business is doing and promoting on social media to ensure compliance and to minimise risk whilst also maximising opportunitiesGolden rules for corporate use of social media– Engage– Participate– Influence– MONITOR

To moderate or not to moderate?Workplace strategies and policies

Q&A: Dangerous Tweeting – What lurks beneath?

Defamatory tweetsHarassing tweetsMalicious tweetsMenacing tweetsDeceptive tweetsImpersonating Tweets

Threatening tweetsRevealing confidential informationCopied tweetsUse of hashtags

Social Media and Confidentiality

Problems of misuse or abuse for employers

Mike Wilson, Partner, Employment Team

Social Media

Part of the fabric of our daily personal and working lives Blurring the lines Facebook; LinkedIn; Twitter; YouTube; Google+; Flickr; Bebo; Myspace; Blogs; Emails…….. Twitter – 65 million “tweets” a day by 200 million users LinkedIn – more than 100 million users; 2 new members signing up every second

Positives and pitfalls for employers

Recruitment, Business Development, Networking, Marketing Protection of confidential information – who owns it? Distinguishing between work and non-work related useProtecting the business’ reputation Managing employees’ use of social media Intellectual Property, Contract and Employment Law issues

Who owns the information?

Database created by an employee in the course of employment? Who is the owner?

Must be a substantial investment in obtaining, verifying or presenting the contents of the database.

Looking at LinkedIn; – did the employee “prepare” the LinkedIn database outside

employment for personal reasons or “in the course of employment”?

– contacts that pre-date employment or which are personal to the employee?

– the fact that the database consists of personal and non-personal contacts does not necessarily mean that the employer is unable to protect it: PennWell Publishing v Ornstein (2007)

Confidential information

Profile information such as name, educational background / qualifications – not confidential

Client lists – confidential – use for non-business purposes is not permitted during

employment, importance of employer protection – Hays v Ions (2008)

LinkedIn – Information is publicly available (Google) – Privacy settings (contacts)

Managing Employees Using Social Media

Should there be access to social media during working hours?

Vicarious Liability?

“In the course of employment”.

Cyber bullying

Discrimination and Harassment.

Medium for conduct which would otherwise be dealt with under Disciplinary Procedure.

Comments posted can amount to gross misconduct; – Nature of what has been posted – All other relevant circumstances

Teggert v TeleTECH UK Ltd (2011)

Bringing The Employer Into Disrepute

Protection of reputation. Gross misconduct – even if ostensibly disseminated to personal friends / contacts only. Social media as evidence. Breach of duty of fidelity.Crisp v Apple (2011).

Issues on Recruitment and Termination

Recruitment – Vetting candidates – Data protection considerations

Restrictive Covenants – do these prevent the employee from having contact via

LinkedIn?Settlement Agreements– Express provisions in settlement agreements regarding

contact through LinkedIn Garden leave

Practical solutions

Contract of Employment Policies – needed given the uncertainties in the law As a minimum a social media policy should; – set clear parameters of what is and what is not acceptable

use for LinkedIn, etc– highlight business critical nature of the LinkedIn database

and the fact that contacts built up during work time using work equipment belong to the employer

– require employees to use the tightest privacy settings – clearly state that infringement of the policy could result in

disciplinary action – make it clear that the employer will monitor usage to ensure

compliance with the policy

Policies – some ideas for you

Restricting / prohibiting employees from connecting with other recruiters and / or providing endorsements or recommendations Requiring notification to the employer each time a connection is made with a business contact Regular review meetings to look at and discuss employee’s LinkedIn database / other social media Business communities only to be set up with the express approval of the employer A comprehensive policy provides a perfect opportunity for the employer to make it clear that: – LinkedIn database is exclusively for the benefit of the employer– any contacts made via or on LinkedIn will belong to the employer– the employer retains supervisory rights to ensure the business

brand is protected

Final thoughts

Application of existing legal principles to this evolving phenomena is uncertain

Employers must develop clear policies and employees must be trained in responsible usage

Case Study

Dave works for CallCo Ltd, a call centre based in Hampshire. Dave has attended an induction day during which the employer encouraged Dave to use Social Media to enhance his contacts. Dave has a LinkedIn account from his previous employer that he thinks he will continue using as he already has a lot of personal contacts on there.

Dave updates his LinkedIn account so that it clearly states he is now an employee of CallCo.

On 12th September Dave has a really bad day at work, goes home and posts on Facebook “I hate CallCo, such a disorganised company, wish I didn’t have to put up with this”. Dave does not have the tightest privacy settings on his account.

Steve, the HR Manager of CallCo sees the post and wants to speak to Dave about it, he is concerned that clients have also seen the post.

Case Study 2

Dave leaves CallCo in order to set up a competing business. Unfortunately Dave has no Restrictive Covenants in his Contract of Employment. Dave has a group set up on his LinkedIn account which was used for CallCo business. As soon as Dave leaves he uses this group as a source of email addresses for a press release announcing his new competing business and inviting everyone to attend an informal event.

CallCo have asked Dave for the username, password and access details for the group but Dave has refused to disclose these details, arguing they are personal to him.

Contacts

Mike Wilson

PartnerEmployment TeamMike.wilson@bllaw.co.ukTel: 01865 258006

Nicola Diggle

AssociateCommercial Litigation and Dispute ResolutionNicola.diggle@bllaw.co.uk01865 254285