The Metro newspaper reported on Wednesday how a student won £10,000 in damages from a former friend. Raymond Bryce, a law student, failed to see the funny side of chef Jeremiah Barber’s post of a paedophiliac picture on his Facebook page with the words “ Ray, you like kids and you are gay so bet you love this picture, Ha Ha”. Bryce sued Barber in the High Court for libel and won damages. Barber ended up with a large money Judgment against him, a conviction for circulating indecent images of children and 150 hours’ community service. This is yet another illustration of how some people seem to take leave of their senses when using social media. What a thing to “joke” about!
Although this incident involved two private individuals, there is a lesson to be learned here for employers. What would have been the situation had Barber been using his employer’s computer to access Facebook, or the offending comments had been placed upon a corporate Facebook page, or twitter account or blog? In that situation the victim would probably sue both the individual who posted the comment and the company for not taking action: it is usually going to be more likely that the company can pay rather than the employee. It is possible in law for a company to be held liable for the actions of its employees – it’s called vicarious liability – so, for instance, the employer of a delivery driver who knocks over and injures a pedestrian whilst on his rounds will be sued alongside the employee driver. If that is the case for a driver, why not for an employee who posts inappropriate material whilst at work? One answer would be for the company to argue that the employee was not acting in the course of his work duties that he was, in the phrase beloved of lawyers, “on a frolic of his own”. The law isn’t that simple though.
The case of Lister & Ors v Hesley Hall Ltd  UKHL 22 dealt with the issue of vicarious liability and when it will be appropriate to place liability upon the employer. The House of Lords held that the employer could be held liable for the action of an employee where it was held that the employer should be held vicariously liable where the act complained of is reasonably incidental to the type of business carried on. In the later case of Dubai Aluminium Co Ltd v Salaam & ors HL 2003 IRLR 608, Lord Nicholls said that for vicarious liability to be established the act complained of
“must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment”
This should protect an employer in the Bryce – Barber type scenario above. If an employee posts inappropriate material on his own PC in his own time that should not impact on the employer unless the company is specifically mentioned or linked in some way. However, what about where the employee is authorised by the employer to tweet or blog or update Facebook etc to promote the business and the employee libels a third party? What about where the employee is home-based? The company may well be held liable and could end up with a nasty bill, which may not be covered by employers’ liability insurance.
What should the prudent employer do to minimise such risks? The answer is to put in place a social media usage policy which sets out what is acceptable and what is not. This should include a prohibition on disseminating any indecent or pornographic images or text. It should also state that the employer will not tolerate any misuse of its social media networks that would breach the confidentiality of it or its clients or cause embarrassment to them.
There is no reason why that restriction should not extend to employees’ use of social media in their home life. The policy should make it clear that any breaches of the policy will be treated very seriously and may constitute a disciplinary offence leading to dismissal for gross misconduct. This will enable an employer to argue, should the need arise, that the employee was not authorised to make the comment.
Furthermore, the employer should monitor their networks to make sure any offending articles or comments are removed as soon as possible.
Having said all the above, I don’t agree with Theo Paphitis. Facebook and other social media tools are becoming increasingly important as marketing and communication tools. Removing them from the workplace isn’t the answer: educating employees on correct usage is.
If you need any assistance with any of the issues raised in this piece, or would like to draw up a social media usage policy, then please do get in contact with me via firstname.lastname@example.org or on 0207 464 8433