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Think you can just let loose with your thoughts on social media? Think again!

When it comes to the law, free speech does not mean free rein. Anyone using social media should be aware of the legal pitfalls, and know how to avoid them. Steve Hemsley explains

By Steve Hemsley

When it comes to the law, free speech does not mean free rein. Anyone using social media should be aware of the legal pitfalls, and know how to avoid them. Steve Hemsley explains

The law has struggled to keep up with the internet explosion, yet for anyone using social media the legal implications of defaming someone online are serious. People lose their inhibitions on Facebook and Twitter and often post whatever comes to mind. This has led to an increasing amount of litigation stemming from online harassment and bullying.

Defamation is a civil offence and can be either slander, where the defamatory statement is spoken, or libel, where it is written, broadcast or otherwise published. Most courts have ruled that social media-derived defamation is libel, although chat on an online bulletin board is more like slander.

Royal Pharmaceutical Society commercial, intellectual property and information technology solicitor Kimberly Shields says anyone making defamatory statements on a social network that identify a person or business (even indirectly, if there are enough clues) risks legal action.

“By simply posting the statement on Twitter or Facebook, or retweeting or sharing it, that is considered publication for the purposes of the law,” she says. “Social media users must be aware that any negative or suggestive comments could lead to them losing their jobs, or being taken to court for defamation.”
When it comes to dealing with bullying and harassment on social media sites, any action should be in line with the employer’s policy on workplace bullying. This means treating any abuse online as if it occurred in the workplace.

In allegations of libel, claimants do not have to prove they have suffered financial loss to win a claim. However, the Defamation Bill, which is expected to become law at the end of 2013, will require litigants in England and Wales to show that defamatory statements have caused “substantial harm” to their reputation, up from the current threshold of simply “harm”.

Employees have always moaned to friends and family about work, but negative comments on social media are seen by more people and can spread rapidly.
The test an employer will make is whether the comments would bring the company into disrepute or damage its reputation. Online comments are not automatically seen by large numbers of people, for instance. Yet there are many examples of employees losing their jobs after making negative comments online. For example, 13 Virgin Atlantic cabin crew members were fired after they described passengers as “chavs” and criticised the airline’s approach to safety on Facebook.

Workplace policies

Ideally, pharmacy employers should have a social media policy and specific related clauses in employment contracts. This is important because employers can be held vicariously liable for the actions of their employees.

In Preece versus JD Wetherspoon Plc, a pub manager was sacked for making inappropriate comments on Facebook about her customers, breaching Wetherspoon’s email and internet usage policy. The employment tribunal in that case held that the dismissal was fair.

Jon Heuvel, a partner at Penningtons Solicitors, says a social media policy could include restrictions on accessing social media sites through the organisation’s IT systems during work time, restrictions on referencing the organisation’s name on social media profiles, and a clear statement that all comments on social media sites will be treated as public, regardless of security settings.

“How people act on social media in their personal life does impact on their professional life. I would argue that nothing put on the internet is private,” says Heuvel. “I use the Daily Mail test. Imagine the headline if your post appeared in the morning papers.”

He adds that pharmacy staff must also be aware of breaches of patient and drug manufacturer confidentiality when using social media. “It will not reflect well on a pharmacy if a member of staff is acting inappropriately. Tweeting about a problem a pharmaceutical company might have could damage the manufacturer’s business, for example.”

Employers and line managers must be careful when trawling through social media to make background checks on potential new staff. The reasons for such a search may be valid, but an employer could face claims for discrimination. Someone’s sexuality or religious beliefs would be unlikely to appear on an application form and might only be revealed on an online search. The pharmacy would have to prove the real reason for the decision not to employ a person.
It is important pharmacy staff are not only aware of their employer’s social media policy but also the potential consequences for them and the company if they breach it.

Social media myth-busting

Myth number 1

I can relax in my anonymity if I post something using an account or user identity that does not identify me

Wrong, says Ms Shields. In 2007 the High Court ordered the operator of a football club fan webpage to disclose the identities of those posting defamatory remarks anonymously. The operators tried to argue that they would be in breach of the Data Protection Act if they disclosed personal information, which included names and addresses.

They were not successful. The courts held that the disclosure was proportionate, because there was no other way to reveal the identities of those making the defamatory statements.

Myth number 2

As long as it is my truly held opinion, then I am free to say what I want

For you to claim the “fair/honest comment” defence, your comment must be a matter of public interest, be recognisable as comment rather than an imputation of fact, be based on facts that are true, and explicitly or implicitly indicate the facts on which the comment is being made. The comment must also be one that an honest person — however prejudiced, exaggerated or obstinate in his or her views — would make.

Myth number3

When I use social media I am disclosing information to a closed user group

Mark Weston, head of commercial, IP and IT law at Matthew Arnold & Baldwin, says that, although many social networks have got better at implementing proper privacy settings, most people do not know how to use them or how to configure things properly. “Another myth is that people think they understand who is getting their information. All the research shows they don’t. It’s not just about competitors. Future employers and insurance companies are also interested in health information.”

Summary

Social media is a great tool to keep in touch with friends, network and even help promote your business. However, it is worth remembering the following advice before you post something online:

• Do not post unkind things online.
• Do not post threats online. It is illegal to send menacing electronic communications, under the Communications Act 2003.
• Do not post offensive comments online. “Vulgar abuse” is not considered defamatory, and Article 10 of the European Convention on Human Rights protects free speech. However, the Malicious Communications Act 1988 has been used to prosecute someone who made fun of dead children on Facebook and YouTube.
• Employers should have tightly drafted policies or codes of conduct.

Case study

Scottish chain Reach Pharmacy has a social media strategy to help its staff keep within the law. Arvind Salwan, director of the Reach Pharmacy Group, would not consider a blanket ban on staff using social media because the technology helps with marketing and building relationships with patients.

“[Members of] the team managing social media activity are fully aware of the legal implications,” says Salwan. “They have received training, and we have a guidelines document, too.”

He says it is not an employer’s job to tell staff what to post on their personal social media pages  in relation to their workplace or colleagues, but he would take any policy breaches very seriously. “It is not acceptable for any employee to cause unwarranted potential reputational damage to their employer or industry through personal opinion, even if it has been expressed in a personal context.”

 

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2013.11121252

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