More and more people are using social networking sites such as Twitter and Facebook, but what if a member of staff posts something inappropriate that could affect your business? Solicitor Emilie Bennetts looks at the legal implications.
THE PROBLEM
Posting inappropriate content on social networking sites such as Facebook and Twitter is becoming a common problem as the lines between work and private life become increasingly blurred. Incidents such as these highlight how important it is for employers to monitor their employees' use of the internet and e‑mail systems, including the use of social networking sites. The misuse of computer systems can potentially be embarrassing to a business and can, at worst, lead to a damaged reputation and loss of business.
THE LAW
It may also create further legal problems including copyright infringement; defamation; harassment and discrimination; transmission of confidential information and trade secrets; and transmission of viruses.
Employers may wish to monitor employees' use of e‑mail and the internet to ensure it is not being abused, but should be aware that such monitoring within the workplace gives rise to obligations under legislation such as the Data Protection Act 1998 and the Human Rights Act 1998. Employers must use specific policies and methods in monitoring employees' use of the internet and e‑mail. As a bare minimum, this will involve ensuring that any monitoring or surveillance is standard for all employees and not therefore discriminatory, and that it is proportionate.
The Employment Practices Data Protection Code recommends that employers undertake "impact assessments" to demonstrate that they have achieved the desired balance between allowing workers to enjoy privacy in the workplace, and ensuring that the interests of the business are protected.
EXPERT ADVICE
First, employers should ensure they have a robust, regularly updated e‑mail and internet policy, usually forming part of the staff handbook. They should also ensure that employees sign a statement confirming they have read the handbook and agree with its terms.
The policy should clarify e‑mail etiquette and content and set out what is and isn't acceptable internet use, including whether use of the employer's systems for personal reasons is permitted and if so, to what extent (ie, during lunch break). It should also clarify that the employer is authorised to monitor employees' use of e‑mail and the internet, and how the employer will do this.
It should also explain what the penalties are for breach of the company's internet and e-mail policy. Such action could constitute a criminal offence in some circumstances, or amount to gross misconduct, resulting in the employee's dismissal.
Second, employers should ensure they have appropriate software in place to monitor employees' e‑mail content and traffic. Certain software can search for specific words within e‑mails, or for particular recipient addresses. Similarly, programs can be used to monitor (or block) employees' use of certain internet sites.
Every business must ensure that personal data is processed fairly and lawfully, and is obtained only for specified lawful purposes. The Information Commissioner has the ability to impose fines for breaches of the data protection provisions.
CHECK LIST
- Draft a clear internet and e‑mail usage policy. Ensure this is regularly updated and is easy to access. Ensure that all employees sign a statement confirming that they have read it, and agree with its terms.
- Monitor your employees' use of the internet, as well as the volume and content of e‑mails.
- Consider blocking access to certain websites, as appropriate.
- Ensure that any investigation into, suspension or dismissal of employees further to abuse of e‑mail or the internet is fair and in accordance with your company's disciplinary policy.
- Ensure you comply with your obligations under the Data Protection Act, the Human Rights Act and other relevant legislation.
BEWARE!
Monitoring employees' activities in the workplace is complicated and involves a balance between protecting the rights of the business and ensuring that the employees' personal data or right to a private life are not infringed. However, it is often necessary to ensure the business is not placed at risk of the legal issues mentioned. A clear internet and e‑mail use policy will ensure that employees understand their obligations in this area.
CONTACT
Emilie Bennetts is a solicitor at Charles Russell LLP