Amy Woolfson looks at social media and the dangers it poses for companies.
The rise of social media seems unstoppable. In January 2013 there were an estimated 33 million Facebook users in the UK. Earlier this month, Twitter announced that it had 15 million UK users. And LinkedIn, a networking site aimed at professionals, has over 11 million users in the UK.
Companies are fast realising that they cannot avoid a social media presence. It can be a powerful tool for engaging with customers: the luxury brand Burberry has cultivated over two million Twitter followers, who opt in to receive regular bite-size updates on new lines, celebrity endorsements and fashion tips.
However, social media can also lead to embarrassment, reputation damage and litigation. This article looks at some of the issues and case law that companies (and employees) should be aware of.
It is increasingly difficult, if not impossible for companies to control their message on social media. An unflattering tweet can be retweeted, screen-grabbed and forwarded almost instantly with the result that even if the original message has been deleted, its legacy will live on.
This is exactly what happened in January 2013 when disgruntled employees of HMV used the company’s official Twitter account to declare: “We’re tweeting live from HR where we’re all being fired! Exciting!!” This was followed with: “Just overheard our Marketing Director (he’s staying, folks) ask ’How do I shut down Twitter?’” The messages were deleted from the @hmvtweets account, but the message had already gone out to HMV’s 62,000 followers and the hashtag #HMVXFactorFiring briefly trended. Worse still for HMV, the story was reported in traditional media, including a number of national newspapers.
An employer or employee who would rather certain content about them was not online has few options provided that the content is lawful. The Google Spain case, currently before the European Court of Justice (ECJ) should clarify whether an individual has any right under EU law to request providers remove data about them from the internet (the so-called ‘right to be forgotten’). The ECJ Advocate General’s opinion, which is not itself binding but acts as guidance for the justices, is that there is no such right under EU law. While companies cannot control everything that is said about them online, they can at least control what they say about themselves, and they would be advised to be wary about offering information that they might not be able to retract.
Social media has made companies accountable to their customers in new ways. Twitter, in particular, is a highly public and near-instant means of communicating. Those companies who recognise the opportunity can capitalise on it, but others risk losing face. Compare and contrast the online retailer, ASOS with British Airways.
ASOS has a dedicated customer services Twitter account, which is monitored 24 hours a day, 365 days a year (@ASOS_HeretoHelp). Its Twitter account operates as a public extension of its more traditional customer service channels.
At the time of writing, British Airways does not have a dedicated customer services account on Twitter. Its main account (@BritishAirways) states ‘we love reading your tweets & try to answer all of them between 0900-1700 GMT Mon-Fri’. The pitfalls of a part-time Twitter account became apparent when earlier this month a customer tweeted about his father’s lost baggage. This might have gone relatively unnoticed, had the customer not paid to promote the message: “Don’t fly @BritishAirways. Their customer service is horrendous.” The message had been seen some 25,000 times on Twitter before BA even noticed, and it had spread to other sites, such as Mashable and the BBC.
Companies need to pay attention to what their employees might be saying about them online. They might not like what they find: a third of respondents to the 2010 My Job Group survey (‘Social media in the workplace’) said they had talked negatively about their workplace on social networking sites. Some 19% of respondents had criticised their boss or the owner of the company, 13% had criticised peers and 12% had criticised their line manager.
Of course, employees are entitled to have whatever view they like of their employers. The problem comes when the criticisms are less private than the employee may have assumed. Here are a few examples:
In Dixon v GB Eye Ltd, ET/2803642/10 an employee was dismissed after she took to Facebook to declare that her colleagues were “the biggest bunch of w***ers known to the human race! Full of gingers, fat w***ers, sleazes, brown noses and cokeheads!” The Employment Tribunal held that Ms Dixon was fairly dismissed.
This is not to say that courts and tribunals will always side with an employer in a case involving unflattering comments made online.
In 2005, Joe Gordon was dismissed from the Edinburgh branch of Waterstones as it was discovered that he had been writing a blog (the Woolamaloo Gazette), which contained some sarcastic comments about his employer. He referred to his manager as “evil boss” and a “cheeky smegger” as well as referring to the firm as “Bastardstone’s”. Gordon appealed his dismissal and was offered reinstatement, but chose instead to take an “amicable settlement” and a new job at Forbidden Planet books, who were no doubt encouraged to hire him because of the publicity that he would bring.
What about where an employee makes a comment that is unrelated to the workplace, but that the employer is nonetheless uncomfortable with?
In Smith v Trafford Housing Association  EWHC 3221, Mr Smith, a manager for a housing association, posted a link to a BBC news story about same sex marriage on to his Facebook page, which also named his employer. Smith commented that, in his opinion, same sex marriage was “an equality too far”. After a colleague complained, Mr Smith was disciplined for gross misconduct and demoted. Mr Smith made a claim against his employer for breach of contract. The High Court found in his favour for the following reasons:
1. Smith’s postings on gay marriage had not been contrary to his employer’s code of conduct or equal opportunities policy and so had not amounted to misconduct;
2. Smith had not brought his employer into disrepute as his Facebook wall was for personal purposes and, while he had identified his employer, he had not held out his comments as being for work;
3. Smith’s demotion was therefore a breach of contract
While Mr Smith won his case, his employer only had to pay him £98 in damages. But they would have had to pay legal costs many times the value of these damages and divert staff time to the case.
The risk of embarrassment and litigation can be reduced in part by companies devising and adopting a social media strategy. Social media should be considered a formal part of a company’s communications strategy, and a round the clock means of communication. The British Airways experience highlights that companies need to be prepared to act quickly to customer feedback and complaints.
By tailoring a strategy to the values and objectives of the organisation, companies can use social media to strengthen their identity. For example, the Advisory, Conciliation and Arbitration Service (ACAS), whose political independence is an important part of their identity, state that staff should not indicate a political allegiance in the course of using social networking sites – particularly if they identify themselves as working for ACAS – and that behaviour should be in line with ACAS’ general guidance on political activities. Clear advice like this can guide employees from the outset as to what is or is not acceptable behaviour online and help keep the employer’s online presence ‘on message’. Companies that are less social media aware would do well to consider their own strategy – before events online overtake them.
Amy Woolfson is an Open University student. She tweets @AmyWoolfson.