On Wednesday July 27th, Metro.co.uk published the story about how a student won £10,000 in damages from a former friend after suing for libel over a Facebook “Joke” that went badly wrong.
Raymond Bryce, a law student, failed to see the funny side of former friend, 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”.
Mr. Bryce, who suffers from Asperger Syndrome said more than 800 people would have been able to view the page and that he was too scared to leave his home because he did not know who had seen it.
The posting caused a great deal of stress for both him and his family and Bryce duly 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… Not a laughing matter!
This is yet another illustration of how some people underestimate the power of the internet and social media from a legal context. Many users seem to forget (or are not aware) that defaming another person and publishing that defamation is libel, whether in print, using posters or through social media. In fact, due to the “targeted” nature of social media, Dr Ian Brown, from the Oxford Internet Institute, argues that it is “worse in some ways than putting offensive posters on lamp posts because it’s going directly to your friends”.
Issues For Employers
Consider the above scenario in a business context. What if employees use their employer’s computer to access Facebook? What if or defamatory comments are placed upon a corporate Facebook page, twitter account, blog? In such a situation the victim would probably be advised to 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 has deeper pockets to make a payment and will chose to settle sooner rather than later.
In law a company can be held “vicariously liable” for the actions of its employees. 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. So what about an employee who posts inappropriate material 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 legal phrase, “on a frolic of his own”. However, things aren’t so simple.
The case of Lister & Ors v Hesley Hall Ltd  UKHL 22 dealt with the issue of vicarious liability, specifically, 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 defamatory material on his personal PC in his own time that should not impact on the employer unless the company is specifically mentioned or linked in some way. However, if the employee has been specifically authorised by the employer to tweet, blog or update Facebook, Myspace (does anybody still use Myspace??) etc. to market the business and libels a third party, it could be argued that the business should have controlled the employee’s actions and is therefore vicariously liable. Worse still, if the employee is home-based, the company may be held liable and could end up with a nasty bill, which may not be covered by the employers’ liability insurance policy.
What the prudent employer ought to do:
1) Social media usage policy: This sets out what is acceptable and what is not. Ideally, this would include a prohibition on disseminating any inappropriate or pornographic images or text and 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 or financial loss to them. (NOTE: There is no reason why that restriction should not extend to employees’ use of social media in their home life.) The policy should also make it clear that any breaches will be treated 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. (PLEASE CONTACT ME IF YOU REQUIRE A NEW SOCIAL MEDIA USAGE POLICY)
2) Publication: There is a growing trend amongst many companies to publish their Social Media Usage Policy; providing clients, customers and other stakeholders with a degree of comfort about the employee actions and management in this area.
3) Monitoring: The employer should monitor their networks to make sure any offending articles or comments are removed as soon as possible.
4) Access: Limit to a few individuals.
5) Password Protection: The employer should ensure that its own social media profile passwords are kept confidential by those with access. If necessary, change passwords every few months.
6) Reputation: Keep an eye on what is out there. There could be a disgruntled former employee or an unhappy client or customer who sets up a false page and decides to defame others. Although you may be able to proved that the page or site is a fake and you won’t be held “vicariously liable”, it may have damaging effects to your reputation!
7) An Outright Ban?: Some (including Dragon Theo Paphitis) might argue that the solution is to ban social media from the workplace. The recent news story that social networking websites are costing the British economy up to £14 billion a year in lost working time might add substance to that argument.
However, whilst I can understand why certain businesses would want to ban the use of social networks – they are a time consuming distraction – the fact that they are important promotional and communication tools would trump this argument. (Indeed, due to the proliferation of mobile technology into our daily lives, a company would need to go the unlikely extra length of prohibiting its employees from bringing their smartphones to work, in order to fully enforce its social media ban!) Instead, I would contend that good management and a sound usage policy (see 1 above) will keep your employees happier… and hopefully, your customers satisfied.
If you or your business have any questions relating to Media Law or Reputation Management matters and would like a free consultation with a member of our Media Law Team, please contact us on 020 8209 0166. If you prefer, you can contact us by email at firstname.lastname@example.org.
About GAD LLP’s Media Law Practice:
Gregory Abrams Davidson’s Media Department is experienced in acting for a variety of media, technology and entertainment companies, celebrities, sports personalities, investors and professionals involved in the sector.We cover many media-focused legal issues, including reputation management, privacy and defamation, Intellectual Property, Entertainment, I.T., telecommunications and E-Commerce, film, TV, music and publishing. We provide a reliable and efficient service, constantly striving to provide practical, commercial, cost-effective legal advice to achieve the right result for our clients in the shortest possible time.