Defamation of Employers on Social Media

Introduction: The problems for employers arising from the rapid growth of social media include decreased productivity, defamation and disparagement of the employer and its employees and customers on a public and massive scale, disclosure of confidential information, and harassment of employees.   Many of these problems are complicated by the fact that they can be undertaken by an employee who is off duty and off site including by disgruntled ex-employees.

Defamation on Facebook: An employer can prohibit and respond to disparaging comments made about the employer by its employees on a private facebook page.  Employees owe a duty of fidelity (ie. loyalty and faithful service) to their employers that does not permit them to disparage their employer or superiors.  Therefore, employers have always had the legal right to respond to disparaging statements by employees.  However, traditionally, the specific statements made during water cooler banter or lunchroom rants were frequently unknown by the employer, difficult to prove and had limited negative impact.  On the other hand, disparaging statements made on social media have the potential to be broadcast in a written form to a very large public audience that includes customers and suppliers of the employer.  Therefore, even where such conduct occurs off duty and even when a facebook page may only be visible by “friends” of the employee, such conduct constitutes serious employee misconduct because of its potential harm to the reputation and other interests of the employer.

Examples: On October 22, 2010, a Member (decision-maker) of the B.C. Employment Standards Tribunal upheld a finding that an employer had not violated the Employment Standards Act when it refused to permit an employee to return to work following a maternity leave:  Re: Walder (BC EST#D113/10). The Tribunal Member agreed that the employer had just cause to terminate Ms. Walder’s employment for her conduct which constituted a breach of her duty of loyalty and faithful service.  The conduct included a disparaging statement made on a co-worker’s facebook page and disparaging comments made about the employer on a website.

A decision of the B.C. Labour Relations Board released the same day as Walder has received lots of attention from online legal commentators.  The Board held that the employer’s decision to dismiss two union supporters was not motivated by anti-union animus.  Rather, the employer had proper cause due to very disparaging comments made on the employees’ facebook pages.  Lawyer Robert Smithson summarized this case on HRVoice.org.

Of great significance in many of the decisions involving bad behaviour on the internet are findings by adjudicators that there is no or limited expectation of privacy for those publishing comments on their private facebook pages or other social networking sites which can be viewed by many and re-published for the viewing of countless others.

Closing comments: Clearly, not all employees have yet learned to keep their disparaging comments to themselves.  Management of the continuing problems associated with the rapid growth of social media is much more effective with written policies in the workplace.  See my post: “Managing Social Media in the Workplace with Policies”.