Written on behalf of Peter McSherry
Social Media & Digital Footprints
Most people use Facebook, Snapchat, Twitter and other social media postings as an everyday event with little thought about how such information may later be used by an employer or against them in court proceedings in workplace related disputes.
Employer’s Right to Use Digital Footprint
Many employees would be surprised to learn that postings on Facebook, Twitter, Instagram, YouTube, and other social media as well as text messages, and email communications are all fair game to an employer seeking to prove just cause for dismissal or other disciplinary steps.
In cases where online communications are at issue, the question to be determined often becomes whether after-hours communications made by an employee are worthy of termination, not whether such postings can be used in court to begin with.
In a pre-internet era, such conversations often took place between two colleagues or friends and would remain forever heard by only those persons. In the modern world, where such conversations occur online, there is a permanent digital mark made, one which cannot be erased. Casual Facebook or other messaging commenting adversely on one’s employer or business activities, even gossiping about the boss and work peers, can all now be the subject of concern to the employer and indeed mandated by court order to be produced. It is well-established that such communications are admissible as evidence.
The issue to be determined is typically whether the words stated have denigrated the employer to such a degree to warrant dismissal. Generally speaking, after-hours conduct, however proven, can be used to rationalize discipline provided that the employer is able to prove that it has suffered harm to its business or reputation due to the conduct of its employee.
A Term of Hire
Apart from the discipline issue, some employers have adopted a hiring practice of requesting to review the prospective employee’s Facebook profile before confirming an offer of employment.
Even where an employer doesn’t explicitly ask to review your social media profiles, it is virtually a given that the employer will Google your name, or otherwise complete an internet search of you before they extend an offer of employment. That drunken college photo may have seemed to have been good fun ten years ago, but perhaps not so impressively seen by a potential employer today.
Can the employer make such a request for a profile review? Arguably it can do so, unless there is an argument that relates to a human rights issue, such as a past medical disability, religious practice, gender issue, age or related issue. All of this puts the job applicant in a delicate position. Should he or she really be required to say, “I would really love to show you my Facebook profile, but I defend my right to so based on a desire for human rights protections”?
The Ontario Human Rights Commission has stated its view of the law, arguing that such a request is a violation of the Human Rights Code. The Commission is not a law making entity. It offers its view, much like Canada Revenue Agency issues policy directives. Its view may be influential at best but it is not a statement of law.
Facebook, to its credit, has issued its own position that an employer should not be able to make such a request.
Defamation & Breach of Confidence
Be careful what you post. Internet postings last forever. The law of defamation clearly applies to all social media postings. The Ontario Court of Appeal noted the dramatic power of an internet posting:
In the Internet context, these factors must be examined in the light of what one judge has characterized as the “ubiquity, universality and utility” of that medium……Kirby J., of the High Court of Australia — portrayed the Internet in these terms, at para. 80:
The Internet is essentially a decentralized, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term “cyberspace”. …This is a word that recognizes that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is [page432] accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.
The same thoughts give added weight to the employer’s complaint of an adverse posting. The employer, work colleagues, customers, suppliers, and generally any person maligned in a posting could sue for defamation. The employer could also sue for breach of confidence if the posting reveals company protected intellectual property or secret business strategies.
Similarly there is no mandated time for the employer to take action against the employee during the active period of the posting.
It is far too late to protect the past but we all hold the future in our hands. Be prudent what you post. Consider what your employer would think if it was reading your postings. Don’t post anything that you would be embarrassed to have read out loud in a courtroom. After all, any of this may well happen one day.
Legislators in Europe have recommended the deletion of all social media postings after two years. It remains to be seen whether something similar will be proposed here in Canada, but this may be a good idea.
What Does All This Mean ?
If you are seeking preventive advice or facing adverse action due to a social media posting, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.