Rudolph the Red-faced Reindeer: Christmas Perils of Social Media

With thanks to Susan Hall, Partner IT & IP at Clarke Willmott LLP for this guest blog

It’s a sit-com cliché: the drunken office party which ends up with blatant abuse of the photocopier, a punch-up under the mistletoe and the managing director being caught in flagrante in the disabled toilet with the office junior.

Similar scenarios play out in real life. Despite all the warnings heads of HR and employment lawyers give in advance, over-indulgence at the office party still regularly lead to serious issues such as claims of sexual harassment, racial discrimination or even criminal charges for assault. A too-merry Christmas can lead to a very unhappy New Year all round.

The growing use of social media adds yet another peril to the known dangers of the office party. While the DJ is still teeing up the last track of the night, Facebook and Twitter may already be humming with material that may cause a business far more profound harm than even the worst excesses of the pre-social media era.

A ‘twitterstorm’, like its meteorological counterpart, blows up unpredictably and can cause devastating damage. There are a frightening number of criminal and civil wrongs which can be committed in 140 characters or less. Here are just some of them:

• Defamation and trade libel: Hospitality businesses – for very good reason – keep a close eye on their social media presence. A simple update such as “Should never have had the salmon! Been ill all night! #OfficParty” could spark off others weighing in with tales of horror about the venue in question, and it may all end up in a damages claim
• Breach of the Data Protection Act: Uploading photographs to Facebook or Twitter may be part of a good night out for many, but other people may have good personal reasons to want to keep their images off social media, particularly when looking a bit worse for wear. For example, people involved in acrimonious custody disputes or personal injury claims could suffer serious prejudice by an ill-chosen ‘candid’ snap, taken out of context
• Section 127 of the Malicious Communications Act: This prohibits “sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. The prosecution of Paul Chambers – who unwisely tweeted a joke threat to blow Robin Hood Airport sky-high if it didn’t “get its act together” – shows the broad scope of the section. Public sector organisations in particular need to take care
• Discrimination: Anyone bringing a discrimination claim based on a hostile work environment is likely to find a rich vein of evidence in material posted on social media. ‘Laddish banter’ is a phrase which should strike terror to the heart of every HR professional. Offensive comments posted under the influence of alcohol will still be there the next day, and office parties are the worst environment for bringing out such material
• Harassment and stalking: Posting suggestive comments on someone’s Facebook page or persistently tweeting when they’ve indicated no further interest may well fall foul of the Protection from Harassment Act. So, too, do ‘upskirt’ photographs and other forms of ‘sexting’ if uninvited and unwanted

Is your business at fault?

In addition to the potential damage to their reputation, organisations are considered to be vicariously liable for their employees’ actions when those take place in the course of their duties or reasonably ancillary to those duties. An office party is a function sufficiently closely tied to an organisation’s business to make vicarious liability a real risk.

How should businesses protect themselves?

As ever, the starting point is a well-drafted employment contract and employee handbook. This needs to contain social media policies which not only tackle employees’ use of ‘official’ social media accounts, but their own personal Twitter, LinkedIn, Facebook and other accounts.

Furthermore, in advance of the office party, specific effort needs to be made to remind employees of the behaviour expected of them there, and that expectations of proper behaviour at the venue also extend to behaviour on social media before and after the party.

This should include:

• Circulating a memo referencing the social media policy together with information about the party itself
• Defining what the organisation considers ‘proper behaviour’, including warnings about various legal concerns, such as the Malicious Communications Act
• Stating whether there’s a policy on circulating photographs taken at the venue, and if so, what it is. The policy should either be ‘no photographs’ or ‘no uploading without consent of all people involved’. However, no matter what the policy is, it needs to be clearly communicated together with the consequences for violating it

Forethought in advance can avoid a nasty hangover afterwards and breed a happy atmosphere in your business in the New Year.