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TRANSCRIPT
LAWYERS
Social Media in the
Workplace
April 30, 2015
Jade Buchanan & Kristél Kriel
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LAWYERS
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1. Introduction: Social Media Risks and Policies in Workplace
2. Specific Issues
a) Privacy and Cyber Bullying Laws
b) Monitoring Social Media
c) Misuse – Harassment
d) Misuse – Harming Employer Reputation
e) Misuse Breaching Third Party Rights – Disclosure, Defamation,
and Intellectual Property
3. Conclusions + Recommendations
Agenda
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1. Introduction to Social Media Risks
and Policies in the Workplace
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What is Social Media?
Social Media in the Workplace
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Statistics on Social Media in the Workplace*
Nearly 90% of businesses use social media for business purposes
>70% of businesses reported having to take disciplinary action against
employees for misuses (up from 35% the previous year)
36% of employers block access to social media sites
80% of businesses have social media policies (up from 60% the previous
year);
52.43% of employers’ social media policies cover both use at work and outside
of work
52.94% of businesses updated their social media policies in the past year to
help manage the risk of misuse
37.5% of employers provide employees with training on appropriate use of
social media
*Proskauer Rose LLP / Social Media in the Workplace Around the World 3.0 (2013/14)
Social Media in Workplace
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Interesting Statistics:
December 2008: Facebook had 100 million users.
March 2015: Facebook indicated that 1.44 billion monthly active
users.
Canada: Country with the most active Facebook users (per
capita) at 19 million.
Social Media Use
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Risks Social Media Presents to Workplace
1. Employee/employee interaction (harassment /
discrimination)
2. Employee misuse harms reputation of employer (attack
employer, offensive content, etc.)
3. Employee misuse of social media causes employer to
breach third party right (intellectual property, defamation,
criminal, breach of confidentiality)
4. Viruses/data breach
5. Lost productivity
Overview
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How a Social Media Policy Mitigates Risk / Protect
Employers and Employees
1. Preventative tools – Prevent incidents through education
and by controlling content
2. Investigative tools – Increase ability for employer to
monitor and investigate social media activity
3. Remedial tools – Provide tools for employers to discipline /
terminate employee for breach
Note: Tools are inter-related (e.g. education increases severity
of breach, increasing likelihood discipline will be upheld)
Overview
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LAWYERS
2A. Specific Issues: Privacy and Cyber
Bullying Laws
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Collection, use and disclosure of personal information is
regulated by different statutes
There are different legislative considerations for public and
private sector employers
Federally and provincially regulated employers also have
different but similar privacy legislation
How do Privacy Laws Apply to Social
Media in the Workplace?
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Federal:
Personal Information Protection and Electronic Documents Act
(“PIPEDA”)
Protecting Canadians from Online Crime Act (the “Cyber Bullying
Act”)
Provincial:
The Local Authority Freedom of Information and Protection of
Privacy Act (“LA FOIP”)
The Health Information Protection Act (“HIPA”) for personal health
information.
The Privacy Act
Common law
What laws apply to Social Media in the
Workplace?
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Privacy legislation contains similar requirements regarding
collection, use and disclosure of personal information (PI):
Limits on the collection, use and disclosure of PI
Subject individual’s consent is required to collect PI
Exceptions to the general consent rule (these vary from statute to
statute)
Collection of PI must be reasonable for the purpose for which it is
collected
Reasonable steps must be taken to ensure that PI collected is
accurate, complete, up-to-date, and appropriately protected and
retained
Individuals have ability to access information in possession and
control of public bodies
What does Privacy Legislation require?
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Personal Information = Information about an identifiable Individual
Examples:
education;
criminal history;
employment history;
financial activities;
health history, home address and phone number;
personal views or opinions of the individual;
private or confidential correspondence;
views or opinions of another person about the individual;
tax information; and
the name of the individual if disclosure would reveal personal
information.
What is “personal information”?
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Common Law: Reasonable Expectation of Privacy
In workplace, employers must achieve a balance between: 1) the
employer’s business objectives, and 2) the employee’s right to
privacy.
R v Cole, 2012 SCC 53
High school teacher’s laptop contained nude photographs of minor
student.
The evidence collected from the laptop violated Cole’s Charter right
to be free from unreasonable search and seizure.
Canadians have a reasonable expectation of privacy in their work
computers where personal use is permitted or reasonably expected.
Common Law Interpretation
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Reasonable Expectation of Privacy in the
Workplace depends on:
1) Whether the employee owns the hardware and/or software;
2) Whether the technology is being used during business hours;
3) The employer’s policies surrounding internet and email use;
4) Whether the employee has been made aware of the employer’s
policies; and
5) The extent to which the employer’s policies are regularly and
consistently enforced.
Common Law Interpretation
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Addresses matters relating to cyber bullying
“Lawful access” provisions address search and seizure of
Internet data
Amends Criminal Code, Canada Evidence Act,
Competition Act, Mutual Legal Assistance in Criminal
Matters Act
Came into force on March 9, 2015
The Protecting Canadians from Online
Crime Act
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Cyber Bullying:
New criminal offence relating to “intimate images”
Wide powers for judges in relation to new offence
Existing offences expanded to include electronic communications
Lawful Access:
Demands for preservation of electronic evidence
Wide powers for judges relating to electronic evidence
Streamlined process for warrants and orders to intercept private
communications
The Protecting Canadians from Online
Crime Act
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Interpretation of request for subscriber information from
ISP in R v Spencer, 2014 SCC 43
Police request for IP address relating to child pornography
Internet users have reasonable expectation of privacy in their
Internet activities and online ISP subscriber information
“Lawful authority” within PIPEDA means more than a “simple
request” from a government institution
Police should have obtained warrant or order to compel production
of information
Impact on The Protecting Canadians from Online Crime
Act
The Protecting Canadians from Online
Crime Act
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LAWYERS
2A. Specific Issues: Monitoring Social
Media in the Workplace
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Employers may sometimes be justified in monitoring an
employee’s online conduct:
Lougheed Imports Ltd. (cob West Coast Mazda) (Re), [2010]
BCLRBD No 190
Two Mazda employees were terminated after making a number of
posts on Facebook insulting the employer and their supervisors.
A supervisor noticed the comments and monitored their posts, even
after he was “unfriended” by the employees.
Held: The employees did not have a reasonable expectation of
privacy - the Facebook posts were visible to everyone on the
employees’ friend lists.
Monitoring Social Media Use in the
Workplace
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Unlike social media monitoring, monitoring technology use
is strict.
R v Cole: employees have a reasonable expectation of
privacy in their workplace computers.
Monitoring Technology Use in the
Workplace
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Canadian Railway Company v Teamsters Canada Rail
Conference, CROA&DR 2900:
Employer requested copies of an employee’s cell phone records
as part of an investigation into a train accident.
Held: Personal communications are, by definition, generally
entirely unrelated to an employee’s duties and responsibilities;
however, an exception was found in this case, for several reasons:
Information received only indicated that the employee had been
making a call at a certain time – the phone number and content of
any text was blacked out;
Employer chose the least intrusive method of obtaining information;
and
The employer had a carefully drafted policy which respected the
privacy rights of the employee.
Monitoring Technology Use in the
Workplace
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LAWYERS
2C. Specific Issues: Misuse for
Harassment
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USWA, Local 9548 and Tenaris Algoma Inc., 2014 CanLII
26445 (ON LA)
Following end of a shift, grievor posted complaint about
coworker on Facebook, without naming her.
Comments between grievor and other employees
escalated over two hours. Comments included:
Her work ethic;
Distinctive physical characteristics;
Suggestions of performing physically aggressive and violent and
humiliating acts; and
A cruel nickname.
Harassment Via Social Media
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USWA, Local 9548 and Tenaris Algoma Inc., 2014 CanLII
26445 (ON LA)
Grievor apologized and deleted posts when confronted by
management.
Grievor sent home pending investigation.
Terminated.
Arbitrator noted several factors in determining termination
justified:
Vicious, humiliating and public nature of comments
Grievor only employed 3 years prior to termination; no trust
Employee received training on relevant social media policies
Harassment Via Social Media
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Canada Post Corp v CUPW, [2012] AWLD 2981 (Alta Arb)
The grievor, a postal clerk with 31 years of service made
derogatory Facebook postings over a 1 month period
about her supervisors.
Postings were made during work and off of work.
The postings were sent to more than 50 of the grievor’s
Facebook friends, including a number of co-workers.
The supervisors required significant time off work for
emotional distress after reading the postings.
The grievor was terminated.
Harassment Via Social Media
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Examples of postings:
Oct 10; 1:03 AM Grievor Off Work: Up and drinking again. 3
nights of freedom from Postal Hell. DIE BITCH DIE. I'm playing
with the Voo Doo doll. If I wasn't drunk I would take it to the
driveway and run the bitch over.
Nov 4; 3:43 AM Grievor At Work: Hello from stall 2. No sign of
the evil [D] so everything going smooth so far. It's only 3 40 am so
u never know. Her yes man [M] is here probably to make sure we
don't take extra an extra minute on the lunch break gotta go sort.
Nov 4; 8:53 AM Grievor Off Work: It was a long night, 10 hrs in
the mail mines. The Hag showed at 6 and the swoop through, I've
never seen her without the UGLY coat. C'mon voo doo doll work
your magic.
Harassment Via Social Media
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Canada Post Corp v CUPW, [2012] AWLD 2981 (Alta Arb)
There is ample case law that supports the principle that
what employees write in their Facebook postings, blogs,
and emails, if publicly disseminated and destructive of
work relationships, can result in discipline.
The fact that the grievor was under a misapprehension
about who could access her Facebook site, did not relieve
her from the responsibility of what she wrote.
Termination upheld.
Harassment Via Social Media
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LAWYERS
2D. Specific Issues: Misuse Harming
Employer Reputation
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Thomas v. IBEW Union 424 (Alberta 2011)
Electrical apprentice working on the oil sands.
Posted blogs about conditions in work camp.
Complained about cleanliness of washrooms and limited
menu selections resulting in deficient diet.
Supported his complaints by posting pictures and videos of
the facilities online.
Terminated.
Violation of Internet Use Policy –
Blogging Photos
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Thomas v. IBEW Union 424 (Alberta 2011)
Site operator’s policy expressly prohibited taking of
photographs and videos.
Employee brought grievance contesting his termination.
Grievance dropped when union determined it had little
chance of success.
‘Duty of fair representation’ complaint against union
similarly dismissed.
Violation of Internet Use Policy –
Blogging Photos
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Thomas v. IBEW Union 424 (Alberta
2011)
Takeaway:
Clear employer policy saved the
day
Policy specifically identified “zero
tolerance”
Violation of Internet Use Policy –
Blogging Photos
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Account operator fails to switch between personal and
business account:
Account operator uses poor judgement:
“Autopilot” scheduled releases causes bad timing:
Embarrassing Statements by Operator
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LAWYERS
2F. Specific Issue: Misuse Breaching
Third Party Rights – Disclosure,
Defamation, and Intellectual Property
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Employers may be liable for confidentiality breaches
caused by employees
Social media invites deliberate and accidental disclosure:
Posting photos from recognizable locations or disclosing
confidential information (e.g. prototype of device that is to be
patented)
Unintentional disclosure of location (GPS-enabled device used to
post on social media)
Disclosure of Confidential Information
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Defamation (libel/slander) lawsuits on the rise because of
defamation on social media
Employers can be liable for employee conduct where done
so in course of employment
Can be from employer account or employee account
Example: NBA referee sued Associated Press for
reporter’s tweet:
"Ref Bill Spooner told Rambis he'd 'get it back' after a bad call.
Then he made an even worse call on Rockets. That's NBA
officiating folks.“
AP settled for $20,000
Defamation and Social Media
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Mejia v. LaSalle College International Vancouver Inc.,
2014 BCSC 1559 (Copyright)
Sessional professor at LaSalle College terminated for “professional
unacceptable behavior”. Claimed for wrongful dismissal, defamation
and copyright infringement
LaSalle had used photograph taken by Mejia on it’s Facebook page
Copyright-protected work was photo taken by Mejia at “LaSalle
classroom and of a LaSalle student participating in a LaSalle event”
Photograph not taken in course of duties because Mejia was a
professor, not photographer
Granted minimum statutory damages of $500
Statutory damages are per work – damages for a photo album could
have easily been in 10s of thousands
Intellectual Property and Social Media
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3. Conclusions + Recommendations
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Develop a social media policy / technology use policy
Risk identification
Assign responsibility for policy reviews, refreshes and enforces
Include in the policy:
Who owns the systems (the employer/organization)
Candor with employees - no expectation of privacy in email &
Internet use on company system
Acceptable & unacceptable uses
Consequences of inappropriate use
On-going reminders and training
Specialized training / education for account operators
Ex-employees
Acknowledgment by employees
Prevention: Policies, Education and
Monitoring
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Conduct Investigations with Care
Approach from perspective avoiding future dispute
Ensure that requests for information are reasonable and
sufficiently related to business purposes
Ensure that privacy is intruded as minimally as possible
Obtain consent from employees whenever possible
Pay attention to collective bargaining agreement
Discipline
Properly justify and obtain counsel
Investigations & Discipline
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Thanks for attending!
Please note that the information contained in this
presentation is general in nature and does not
constitute legal advice, nor is it exhaustive on the
subjects noted.
Questions?
Thank you!
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Relevant MLT Blogs:
MLT Privacy Blog
MLT Technology Blog
MLT Employment Blog
MLT Intellectual Property Blog
More Resources
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