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Bloggers beware

The DOMINION POST - 14 April 2010


With the growth of internet social media, employers are seeking to minimise and prevent the potential risks caused by employees' use of emails, blogs and social networking sites.

It is increasingly common for news items to feature stories of dissatisfied employees posting comments or information about their workplace or colleagues online, sometimes becoming subject to disciplinary proceedings.

A recent British decision highlights the importance of employers having transparent systems in place to prevent employees from using electronic messaging to reveal confidential company information or bring the employer into disrepute.

Richard Horton was a blogger in Britain. He wrote an "anonymous" blog that focused heavily on the police force and its operations. The prize-winning blog gave strong opinions on several social and political issues relating to the police and the administration of justice. It gave detailed behind the scenes insights into police work. It provided in-depth anecdotes of police cases which had been disguised by name changes.

The blog was highly critical of several senior politicians and called into question the reputation of the police force. It even went as far as to say persons under police investigation should have no respect for the legal system or anyone working in it. A The Times reporter investigated the identity of the blogger.

As it turned out, Richard Horton was a detective constable with the Lancashire Constabulary. The case came about when The Times sought to publish Mr Horton's identity. Mr Horton sought an injunction to stop The Times from revealing his name.

He argued that if the court allowed his name to be released it could put him at risk of disciplinary action for breach of police regulations. The Times argued that there was public interest in a police officer breaching obligations in relation to police behaviour. Mr Horton was clearly revealing information that he had obtained in the course of his police duties.

The court found that Mr Horton's argument was "unattractive to say the least". It acknowledged that it was inevitable that if his employer became aware that one of its officers was communicating information and opinions to the public at large about the conduct of police operations, there would be a significant risk of disciplinary action. Mr Horton was in clear breach of the Police (Conduct) Regulations relating to confidentiality and discrediting the police service. The court rejected Mr Horton's argument on the basis that the courts are not responsible for protecting police officers acting in breach of disciplinary regulations.

In this particular case it was important that the public should know who was making such serious criticisms of police activities and breaching police regulations to such a degree. The court determined that Mr Horton could not have a reasonable expectation of privacy and allowed his name to be released.

At the conclusion of the case the employer stated: "He has been spoken to regarding his professional behaviour and, in line with disciplinary procedures, has been issued with a written warning."

This decision, though largely related to privacy, shows how susceptible employers are to being embarrassed or commercially damaged by employees' online behaviour. Large companies are increasingly cracking down on employees' use of social media. United States company Whole Foods Market changed its internet code of practice in 2007 after discovering its chief executive was "bashing" competitors on external internet forums. In 2005, Google employee Mark Jen was fired for blogging about the inside life and operations of Google, a blog which had attracted 60,000 hits in one day. In 2009, a senior Telstra employee set up a twitter account in the name of Australian Communications & IT Minister Stephen Conroy and posted satirical and mocking comments, prompting Telstra to publish a six- page set of rules on social media.

These cases illustrate the need for a balance to be struck between the benefits of social media in business, and the inherent risks.

The cases are all relevant to New Zealand. Employers should have clear guidelines around electronic messaging, including what information can be blogged or commented on and what cannot.

Employees should be reminded of their obligations on confidentiality. Clear and consistent policies will help employers prevent damaging emails, blogs, or internet posts being distributed that may put them at risk of legal action. This is preferable to having to "clean up" later. The importance of social media in all our lives will continue to grow. A wise employer will anticipate and deal with likely problems before a mess occurs. Be warned.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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