The surge in popularity of social networking site Facebook has attracted significant media attention, and prompted vocal concern from employers. Aside from the loss to business productivity caused by employees spending too much time on these sites, there’s another less obvious danger. The law can hold employers liable for their employees’ actions – so employees that access Facebook while at work, using their work computers, could be leaving their employer liable for the comments they make. While this principle has not, as yet, been tested in the courts, it is only a matter of time before an unwitting employer finds itself having to defend its policies and processes.
The first case on Facebook to reach the courts concerned the misuse of private information, and the creation of a fake profile. Mr Raphael created a false profile on the networking site and claimed it belonged to an old school friend, Mr Firsht, with whom he had fallen out. The profile contained lies about Mr Firsht's sexual orientation, religious and political views, as well as claiming that Mr Firsht and his company repeatedly lied and owed substantial amounts of money. Mr Firsht was awarded £22,000 in damages for defamation despite the removal of the profile, which was only available for a period of two weeks and only proven to have been viewed by five people.
Whilst the ruling emanates from a defamation complaint, the case nevertheless serves as a reminder to employers that actions on Facebook and other social networking sites can and do have legal consequences and associated financial penalties. Case law dictates that employers can be vicariously liable for the actions of their employees, especially when they have taken place during working hours, so it is critical that employers take the necessary steps to protect their businesses.
* A key element of the protective armour available to an employer is its email and internet policy. It should be made clear to employees that using the internet for matters not related to work is not acceptable.
* Ensuring that employee handbooks are updated on a regular basis is essential and enables employers to keep these in line with recent developments in the world of IT.
* Employers may also wish to consider naming sites like Facebook in their policies and banning their use. By doing so, an employer will not only restrict their use but will build up a degree of protection against vicarious liability, on the basis that it has clear documented evidence to show that use of social networking sites is clearly prohibited.