The Digital Age, Social Media & Legal Implications

The growth in social media platforms has been a phenomenon, helping people to communicate with a wider audience and advertise business. More recently, politicians have embraced social media.

Many people struggle to keep up with the rate of change in the digital age and I am one of those people. Perhaps for good reason, I have tried to distance myself from some forms of social media. Not because of any dislike for it but because it is mostly unregulated and can create traps and pitfalls.

Those of the Polaroid or photo developing era knew a bad photograph only existed should the person holding the negative decide to have the film processed. Any hard copy of the photo could be ‘ripped up’. Although a simple story it has an important message for social media users – If it is posted on social media it is there forever!

It is quite common in legal matters, especially in the field of personal injury law, for insurers and legal advisors to troll social media for evidence about the daily activities of personal injury claimants.

Some of the material, although posted innocently enough, can have significant consequences for the client. The impact of social media has also been felt in the workplace and if we are to believe what we see in the news, it may have played a part in the recent demise of an Australian rugby coach. Here are just two examples of the impact in the workplace of social media misuse.

Mr. Stutsel was dismissed by his employer (Linfox Australia Pty. Ltd.) for posting racial and sexual harassment remarks on Facebook about two of his managers. One of the targets of Mr Stutsel’s remarks was a female manager who became aware of the posted comments through a personal friend of hers, who was also a Facebook ‘friend’ of Mr. Stutsel.

Mr. Stutsel won. It was held the account was set up by his family, had the maximum privacy settings (he believed comments posted would be private), he was not actually responsible for some of the posts and the page was not considered to be a ‘public forum’. Importantly, the employer had no workplace policy regarding this type of behaviour in place: Stutsel v Linfox Australia P/L.

While Mr Stutsel was successful in defending an unfair dismissal claim, the decision highlights the care that needs to be taken when using social media. The next case example was that of O’Keefe v Williams Pty (t/as Troy Williams the Good Guys). Mr. O’Keefe posted comments which contained commonly used expletives directed at his employer regarding his pay. His employer terminated his employment. Mr. O’Keefe had set his Facebook security to the maximum possible privacy but he didn’t count on some of his ‘friends’ bringing the comments to the notice of his employer. Mr. O’Keefe failed in his unfair dismissal claim and his employer was justified in terminating his employment. He admitted the posts and the employer held a policy prohibiting that type of conduct.

If it is posted on social media it is there forever!

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