08/04/2014 Social Media Uses and Abuses: Don t Be Made A Twit By A Tweet

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1 Social Media Uses and Abuses: Don t Be Made A Twit By A Tweet Angela Brumpton Katie Mickleburgh 1

2 The Speed of Change The speed of change is phenomenal Twitter started in July 2006 There are now estimated 200 million users generating 65 million tweets a day Facebook has over 1 billion users If it were a country, it would be the 3 rd largest by population Considerations Employment law Criminal law Civil law 2

3 Why do we use social media? Networking Raising profile Building Recognition and Trust Quick & Cheap dissemination of information Social media - the issues Social networking sites and reputation Recruitment practices Confidentiality Monitoring employees Cyber-bullying 3

4 Social networking and reputation Crisp -v- Apple Retail Limited [2011] Comments / complaints about company and products Fairly dismissed for bringing company into disrepute Discussion points The brand Policies re-enforced by training Right to privacy and reasonable expectation of privacy Social networking and reputation Stephens -v- Halfords Inc [2010] Set up Facebook page regarding changes to hours Set up before seeing employer s policy Unfair dismissal claim successful Discussion points Disciplinary record Steps to remove page and apology Company had set up its own discussion group 4

5 Social networking and reputation Preece -v- JD Wetherspoons Knowledge of policies Use of social media during working hours Significance of privacy settings Whitham -v- Ventura [2010] Knowledge of policy Application of general principles of fairness Evidential issues Recruitment practices Discrimination claims Limited risk Evidential issues 5

6 Confidential information Flexman -v- BG Group Uploaded CV onto LinkedIn Invited to disciplinary and resigned Successful claim of constructive dismissal Discussion points A conflict of interest? Commercially sensitive information Cyber-bullying Teggart -v- TeleTech UK Ltd Harassment conducted through Facebook Harasser fairly dismissed for gross misconduct Discussion points Often takes place outside the workplace - problem Effective anti-bullying and harassment policy in place 6

7 Advice Make clear the extent of personal use permitted Clarify actions that are not permitted Clarify position on use outside work Make clear potential disciplinary sanctions- give examples Set out any monitoring arrangements and data protection issues Ensure damage to reputation is covered How HD can help A good Social media policy, regularly reviewed Employers guide on how to minimise risk Risk assessment identify areas of risk recommendations to eliminate risk overall cost and time savings 7

8 Criminal & Civil Consequences Emma Way Definitely knocked a cyclist off his bike earlier, I have right of way he doesn t even pay road tax! #bloodycyclists Injured person was identified Investigated by the police Suspended from work Huffington Post I want to ride my bicycle 8

9 Criminal Law Malicious Content Communications Act 2003 S.127(1)(a): a person is guilty of an offence (punishable under s.127(3) by up to 6 months imprisonment or a fine, or both) if they send a message or other matter that is grossly offensive or of an indecent, obscene or menacing character by means of public electronic communications network. Aggravating Factors Racism Prejudice against Religion, Disability or Sexual Orientation 9

10 Paul Chambers Cr*p! Robin Hood airport is closed. You ve got a week and a bit to get your sh*t together, otherwise I m blowing the airport sky high!! Paul Chambers Prosecuted under the Communications Act 2003 Found guilty in May

11 Paul Chambers Conviction quashed on appeal by the High Court High profile campaign CPS Guidance June 2013 Communications which may constitute a credible threat of violence to the person or damage to property 11

12 John Nimmo and Isabelle Sorley John Nimmo and Isabella Sorley Sorley "Die you worthless piece of cr*p." "go kill yourself "I've only just got out of prison and would happily do more time to see you berried!!" "I will find you (smiley face)". 12

13 John Nimmo and Isabella Sorley Nimmo I will find you Come to geordieland, bitch The things I could do to you dumb, blonde bitch John Nimmo and Isabella Sorley Ms Sorley 12 weeks in prison Mr Nimmo 8 weeks in prison Judge Howard Riddle said it was "hard to imagine more extreme threats". Huffington Post If You Don t Have Anything Nice to Say, Don t Say Anything at All 13

14 Malicious Communications Act 1988 s.1(1): It is an offence to send an electronic communication which conveys a message which is grossly offensive to another person, where the message is sent with the purpose of causing distress or anxiety to that person Reece Elliott Mr Elliott threatened to kill 200 people in the US, in posts he made under a false name on Facebook 14

15 Reece Elliott Admitted one count of making a threat to kill and eight of sending grossly offensive messages (Malicious Communications Act 1988) Imprisoned for two years and four months Sean Duffy Admitted posting images on Facebook and YouTube mocking the death of four children, including 15 year old Natasha MacBryde who committed suicide. 15

16 Sean Duffy Offence under the Malicious Communications Act 1988 Imprisoned for 18 weeks in September 2011 CPS Guidance June 2013 Communications which may be considered grossly offensive, indecent, obscene or false. These cases will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest. Concerns regarding Freedom of Speech Article 10 16

17 Civil Law Defamation Act 2013 Protects the interests in reputation The limitation period is one year from the date of publication The action in defamation is exceptional in that it does not survive the death of either the Claimant or the Defendant Libel and slander A defamatory statement in permanent form is libel. Examples include; publications in writing (including ), television and radio broadcasts and theatre performances. Defamation in a transitory form, such as speech or gesture, is slander. 17

18 Who can sue? 1. Individual? 2. Corporate entity? 3. Institutions of central or local government, local authorities? What are the basic requirements? 1. A defamatory statement 2. With reference to the Claimant 3. The statement is published 18

19 Defamation Act 2013 Serious harm threshold caused or is likely to cause serious harm to the reputation of the claimant Harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause the body serious financial loss Are you the Defendant? Take down the allegations Public/Private Apology 19

20 Are you the Defendant? New statutory defences of: truth (replacing common law justification ) and honest opinion (replacing common law fair comment ) New defence of responsible publication on matters of public interest Offer of Amends Defamation (Operators of Websites) Regulations 2013 Increased protection for website operators hosting user generated content Must comply with the procedure to enable the complainant to resolve disputes directly with the author of the material concerned 20

21 McAlpine v Bercow Twitter users made incorrect and defamatory insinuations linking him to child sex abuse McAlpine v Bercow Sally Bercow (wife of commons speaker John Bercow) 56,000 followers: why is Lord McAlpine trending? *innocent face* Bercow lost the first High Court Twitter libel trial No damages award as a settlement was agreed Huffington Post - *Not So Innocent Face* 21

22 Cairns v Modi Allegation of Match Fixing Chris Cairns removed from the IPL auction list due to his past record of match fixing. This was done by the Governing Council today. Tweeted to 65 followers, further potential publication of around 1,000 Damages of 90,000 1,385 per tweet in libel damages. Quiz time 22

23 Name five benefits of allowing your employees to use social media? Networking opportunities Raise profile of the business/organisation Generate brand recognition and trust Dissemination of information instantaneously and inexpensively Useful marketing tool Improve online visibility Extend the reach of the firm Establish expertise in a specific area or particular subject Name five legal risks to your business of allowing employees to use social media in the workplace? Damage to reputation Disclosure of confidential information Breach of Data Protection laws Posting of discriminatory or defamatory comments Cyber-bullying 23

24 What are some of the issues that a social media policy needs to address to ensure proper risk management? What is acceptable and non-acceptable use of social media Clarification of the consequences of misuse of social media Prohibition of discrimination and harassment Monitoring of employee s internet usage Compliance with data protection principles Protection of company information Provision for regular review of the policy In 2008 which airline sacked 13 flight attendants for criticising the airline's flight safety standards and describing its passengers as "chavs" on a social networking website? 24

25 We re tweeting live from HR where we are all being fired. Over 60 of us being fired at once. Mass execution of loyal employees who love the brand Who said that? Hahahahaha well done #fa I lied did I #bunchof twats Ashley Cole Just unfollowed, that s a shame... I thought we respected one another but clearly he doesn t, Lewis Hamilton "The trouble with Twitter, the instantness of it - too many twits might make a twat." David Cameron 25

26 Which famous broadcaster sparked a Twitter panic when rumours circulated that he had been electrocuted whilst playing Scalextric? Terry Wogan 26