Civil liability for uncivil conduct

These days it seems as if every passing week brings with it a new story in the press about the legal risks of engaging with social media.

We have heard much recently about the dangers of defamation on Twitter. Earlier this year Sally Bercow learnt to her cost just how easy it can be to libel someone without explicitly accusing them of anything, after sharing a message about Lord McAlpine with her Twitter followers (“Why is Lord McAlpine trending? *innocent face*”).

Employers, too, are finding that the activities of their employees on social media can create risks that can no longer be ignored.

In civil litigation an employer can be found liable for the actions of its employees (where those employees could be viewed as acting in the course of their employment) and may face financial penalties as a result. In defamation cases, where damages can be astronomical, this is a particular concern. All it takes is one employee criticising a competitor on Twitter and a massive legal bill could follow (even if the matter doesn’t get all the way to court).  

Criminal conversations

More troubling than the kind of damage to reputation that leads to civil litigation, is the kind that can land a person in prison.

Criminal prosecutions arising out of conduct taking place on social media are on the increase and in June the Director of Public Prosecutions issued guidance on the prosecution of such cases.

In a further move designed to tackle one particular aspect of this phenomenon the Attorney General, Dominic Grieve, has announced that he will now publish his advisory notes to the media online. Grieve hopes to prevent the public from inadvertently finding themselves in contempt of court and facing criminal sanctions (potentially including imprisonment) for prejudicing a police investigation or a trial.

Thanks to Twitter, anyone with a few followers can consider themselves a ‘journalist’. However, whilst media professionals are trained in the law and ought to know better than to comment upon live proceedings, ordinary Twitter users may be less sophisticated. As a result, advisory notes from the Attorney General, warning where there is a risk that media speculation will hamper an investigation or trial, will now be published on his section of the gov.uk website and via the Office of the Attorney General’s Twitter feed (@AGO_UK).

Grieve has recently brought the third successful prosecution for breach of the injunction prohibiting identification of Thompson and Venables, the killers of Jamie Bulger. The fact that the injunction has been repeatedly breached despite the publicity around the contempt trials shows how hard it is to persuade Twitter users that the law really does apply to them.

There have also been a number of high-profile prosecutions of jurors who have expressly disobeyed the instructions of the judge in their case and commented about it on social media. In his announcement on the publication of advisory notes, Grieve sought to assure people that the move is not about censorship stating that “it’s designed to help facilitate commentary in a lawful way”.

Criminal contempt – a problem for employers?

There are few criminal offences that can be committed by an employee via social media for which an employer is likely to be held liable.

If an employee makes comments that are found to be in contempt of court then it is likely that they will face proceedings alone. However, if commenting upon current affairs, forms part of the employee’s role, there is a risk that the employer will be viewed as the publisher of those comments (just as a newspaper publishes the work of its journalists) and could face prosecution if the employee’s postings are contrary to the law.

Even if an employee gets into hot water for an ill-judged tweet sent from a personal account outside of work hours and entirely outside of their employment, it could still spell trouble for their employer. Whether the comment amounts to criminal activity in the form of contempt of court, harassment or a malicious communication or a civil infraction such as a libel; offences committed on social media invariably attract a lot of media attention.

Any employer caught up in the media storm and potential legal action resulting from an employee’s comments needs to ensure that it has preserved all of its options.

Social media for employers – prevention is better than cure

There are a few simple precautions that employers can take to reduce the legal risks from employees using social media whether for business or pleasure:

• Make sure employees using social media for work receive thorough training and have access to appropriate support and guidance.
• Ensure that social media use is covered by your organisations policies either in a stand alone document or as part of the wider IT policy, the policy should make it clear that offensive or illegal activity on social media may amount to gross misconduct potentially leading to dismissal.
• Have a procedure in place to deal with any adverse reactions to your organisation on social media and make sure everyone knows who is responsible for coordinating your reaction (if any).

Click here to view the DPP Social Media Prosecution Guidelines: http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/

Click here to view the Attorney General’s press statement: https://www.gov.uk/government/news/attorney-general-to-warn-facebook-and-twitter-users-about-contempt-of-court