
Background
Technologic progress shapes much of our daily life. In the same way as the telegraph, the telephone and, more recently, the internet have led to enormous changes to the way we perform work tasks, do business, manage finances, and communicate, the advent of social media has brought new and evolving developments to the way we interact, both personally and professionally. Use of social media, in one form or another, has become essentially ubiquitous in modern Australian life.
Facebook launched publicly in 2006, and by 2015 had 1,440,000,000 (1.44 billion) users worldwide. Twitter commenced operations in the same year, though did not gain widespread popular use until 2011, and in 2015 claimed around 300 million users globally. Instagram was started in 2010 and by 2015 had amassed 288 million users.
For the first handful of years, as far as employers, regulatory and industrial relations bodies were concerned, use of social media by employees was a largely irrelevant curiosity at best, and official use by corporations and government departments was minimal. As time has passed, however, companies and authorities have come to embrace social media for official purposes; largely as a new advertising medium in the former case, and as a platform for dissemination of official information in the latter. In parallel with increased official use of social media, has come recognition of the widespread nature of an individual’s social media presence and the reach of social networking when implemented with modern social media technology. Suddenly, what was once an isolated piece of commentary in a social setting, or at most a short letter to the editor of a newspaper, could now easily be seen by hundreds, or thousands of people instantly and, if of sufficient interest, propagated through the social media network to an exponentially larger audience almost as quickly.
Employers, regulatory bodies, and especially the judiciary, have been slow to respond to this rapidly evolving communications landscape, struggling to apply atavistic definitions and rules to something new, difficult to categorise, and generally initially poorly understood by those charged with interpreting issues arising from social media use. Most large companies and government employers have implemented social media policies to provide guidance to employees, and a framework for policing their social media use.
While social media use policies have been developed primarily to protect people from the online manifestations of workplace harassment, bullying and discrimination, they are progressively fostering an environment where it is unclear where the line between work-related and private use falls. The distinction is murky, highly variable, and in general trending towards increasingly conservative and potentially intrusive interpretation by employers.
Legal Framework
In Australia, unlike some other western democracies, there is no general right to free speech enshrined either in our constitution, or in any state or territory legislation. There are, however, two specific contexts in which public commentary is protected: parliamentary privilege, and speech deemed to be part of “protected activity”. The former applies only to Members of Parliament. The latter pertains primarily to actions and commentary made in conjunction with or on behalf of organised industrial relations bodies, i.e. unions.
There exists a small but growing body of case or common law relevant to an employer’s ability to interfere with or take punitive action over an employee’s use of social media. It has already been firmly established that an employer does have the right to take action against an employee for activity undertaken outside of working hours, and outside the workplace, and this general principle has been extended to include the use of social media.
Cases brought for unfair dismissal in this context have had widely variable outcomes. Unsuccessfully challenged dismissal has usually been in the setting of an employee making public comments directly criticising their employer, or a colleague, particularly in a discriminatory or bullying manner. Successful challenges to dismissal have typically prevailed on the basis that the comments made were reasonably thought to be “private” by the employee, technical ignorance (e.g. an employee not understanding how to remove/delete comments made, when directed to do so) or other mitigating circumstances where intent, or knowledge of the ramifications, could not reasonably be established, or where the social media policy of the employer was either non-existent, or so limited that it was difficult to demonstrate a defined transgression of it.
A consistent feature of legal commentary on this topic is the advice that organisations should aim to have a definite and accessible social media policy, and that the guidelines should be as specific as possible. This both assists employees when deciding what is prudent to say or write in public, and aids employers, and more so the judiciary, in deciding whether an employee’s comments and/or an employer’s actions based on them, are reasonable.
The lack of legislation in this area, the vague wording of many policies and guidelines, and the judiciary’s relative unfamiliarity with applying anachronistic legal principles to the implementation of a new technology, collectively result in a situation where there is often an exceptional degree of latitude involved in the interpretation of what little law there is in this area.
AHPRA Policy for Doctors
The Australian Health Practitioners Regulation Agency (AHPRA) have developed a limited social media policy for healthcare practitioners, last updated on 17 MAR 2014. It covers specific issues such as maintaining confidentiality of patient information, issues related to advertising by practitioners, and for more general guidance, refers practitioners to the Code of Conduct of the national boards.
The relevant section of the AHPRA Code of Conduct for medical practitioners is 4.2(c) which states that: “Good practice involves behaving professionally and courteously to colleagues and other practitioners at all times, including when using social media.”
ACT Government Policy
The ACT Government’s “Use Of Social Media Policy” is detailed, readily accessible on the intranet, and provides concrete definitions regarding some aspects of social media use, but outside of those specified details is sufficiently vague and all-encompassing to allow a very great deal of latitude in interpretation by management and, potentially, a mediating or judiciary body or process.
The more specific prohibitions are both reasonable and obvious. Employees must ensure that they are not:
- Purporting to represent the views, position or policy of the organisation, without authority
- Breaching privacy / confidentiality
- Announcing developments in the organisation prior to official release of such information
- Using social media in the workplace to the extent that it adversely affects productivity
- Being discriminatory, defamatory, or bullying
The somewhat more nebulous sections state:
- Do not mix personal & professional views in ways likely to bring the ACT Government into disrepute
- This is particularly the case if you are making personal comment on issues that are associated with your employment in the ACT Government.
Furthermore, employees are directed to section 9 of the Public Sector Management Act 1994 – General Obligations of Public Employees, which states:
A public servant must not behave in a way that…
- …is inconsistent with the public sector values
- …undermines the integrity and reputation of the service
Importantly, while many of the conduct requirements mentioned in section 9 of the Public Sector Management Act stipulate they are effective only “when acting in connection with the public servant’s job”, the two clauses above are subject to no such qualification, and can therefore be taken to apply at all times and under all circumstances.
This is reinforced in the final section of the ACT Government social media policy, which states that the conduct requirements defined in the Public Sector Management Act:
- Apply to work-related use of social media
- Apply to personal use of social media
- Apply to such use at any time
These latter definitions and inclusions allow for very flexible and subjective interpretation when it comes to deciding if social media activity has contravened ACT Government policy. With regard to real-world implementation of the policy, it is worth noting that there have been multiple instances of ACT Government employees being formally cautioned, and threatened with dismissal, for social media use occurring outside of the workplace, outside of working hours, with no bullying or discriminatory content, no mention of an employer, colleague or patient, no breach of privacy or confidentiality, and without purporting to represent their workplace or employer.
Discussion
The salient point here is that when it comes to public comment on social media, there is no longer any clear divide between professional and personal spheres. An employer, insofar as the law is concerned, effectively has the right to take punitive action for any use of social media by the employee that the employer disapproves of. This can, and does, occur irrespective of whether the social media use is related to their activity as an employee. Consequences can include counselling, performance review/management, and termination of employment. The poorly defined law in this area offers very unreliable recourse with highly variable outcomes in the context of challenging any punitive action taken by an employer.
In this context, it is prudent for medical practitioners to avoid public commentary on social media, particularly on medical or healthcare-related issues, as personal comment is highly likely to be interpreted as sufficiently related to their employment to justify punitive action.
While the intent of social media policy is primarily to prevent tangibly harmful activity such as bullying, harassment, discrimination and abusive behaviour, it is also clear that it can easily be used to suppress any commentary that is viewed by an employer as potentially harmful to their reputation, or politically undesirable, irrespective of the accuracy or veracity of the content. As with most situations of regulation, there is likely an optimal middle ground, between absolute freedom of speech, and the suppression of commentary an employer simply does not like. The potential for real harm through abusive use of social media must be balanced against the potential for stifling robust discussion of important medical and scientific issues that impact on the provision of healthcare services and, most importantly, patient outcomes. The current legal and regulatory environment lends itself to that balance tipping precariously close to the latter extreme. While fear of reprisal is an unfortunate motivator, in such a climate, it is strongly advised that a conservative approach is the wisest choice.
The ACT Government’s social media policy can be found on the intranet.
AHPRA’s social media policy for medical practitioners can be found here.