Social media and networking are today’s tools for the industry.
Burberry will live stream its London Fashion Week AW16 runway show whilst a few months ago Hunter introduced the use of Periscope. Meanwhile J.W Anderson has used Grindr to live stream its LCM show. Equally use of Facebook, Instagram, Snapchat and Twitter are now mainstream forms of marketing whilst many brands use WhatsApp messaging to communicate with employees and other contacts, often as a “group chat”.
But to what extent can the industry monitor personal use of social media by employees?
In the UK, the position used to be that employers were able to monitor employee use of social media on company computers and/or smartphones up to the point personal subject matter became discussed. The employer would then have to be more careful, often refraining from further monitoring for fear of committing a human rights violation. Elsewhere in Europe the position for the employer is more stringent.
However, the European Court of Human Rights decided earlier this month that an employer’s monitoring of an employee’s messages was reasonable in circumstances where the employer was conducting disciplinary proceedings in respect of the employee’s breach of internal policy prohibiting use of the internet for personal purposes. In this case the employee used a company Yahoo Messenger account for personal purposes despite a company policy prohibition.
This latest judgment does not give employers carte blanche to put their employees’ private communications under surveillance. However, it does establish that there are some situations where monitoring may be justified and not viewed as a breach of privacy.
The determining factor is the extent to which there is a ‘reasonable expectation of privacy’ that the employee believes he or she has in the workplace. In some instances, the expectation may be based on the fact that an employer has expressly allowed use a phone or computer for private purposes or that it has been tolerated in practice.
It is often the case that employees with access to WhatsApp or similar accounts share information between themselves. Applying the ECHR judgment, it would be reasonable for an employer to monitor such lines of communication, particularly if:
1. the accounts have been set up with company’s business interests in mind; and
2. a clear policy on the internet, social media and messaging has been communicated, which sets out the parameters of use and that all use is subject to monitoring.
The ECHR ruling states that human rights issues may still be applicable in certain circumstances which an employer must take into account (say where a WhatsApp group has been used by employees and third parties.)
Any alleged personal misuse of a company WhatsApp account by an employee must be handled with great care, as third parties using the accounts would not have consented to any company policy regarding social media and company resources. As such any monitoring or investigating of the alleged personal misuse of the WhatsApp account may constitute a breach of a third party’s right to privacy by the employer!
For the time being the ECHR ruling provides scope for an employer to monitor the personal use of its employees with respect to messages being sent from company computers and smartphones. However, the ruling reflects existing UK law. Accordingly employers still need to be mindful of UK laws such as the Data Protection Act and the Employment Rights Act and act cautiously in the event the decision is taken to monitor employees’ personal messages. Clear and detailed policies of what constitutes social media and to what extent employees are entitled to use social media for personal purposes if any, should also be included in employment contracts and handbooks.