A post or tweet to your friends and followers can end in a real world consequences, blurring the lines between professional and social lives as employees vent about a hard day at work, a fellow worker or the style of management from the organisation. But the issue here is also a lack of awareness and education in the area; if people knew company policies and laws regarding online defamation, would it be restricted to a more personal arena?
Companies have always had a strict stance on defamation, bullying and representation in the workplace; issues that can result in job loss when an individual or business is negatively impacted. With a rise in social media platforms, online defamation on websites including Facebook and Twitter has begun to reach the courts, invoking the loss of employment and the payment of fines that can reach up to $355,000.
48% of defamation cases put to Slater and Gordon in the past year have related to social media (43% specifically for Facebook). It is a problem, and it will cause further unemployment should it not be outlined, especially to the younger generations completing study and moving into a professional career under the swell of new technology.
Defamation occurs when a person states another as corrupt, dishonest or disloyal.
It occurs when someone is ridiculed.
It occurs when something is said that will cause an individual to be shunned or avoided, and the workplace has always been a place that applies this rigorously for the good of employees and the company name.
The course of action for someone being defamed on social media is to firstly ask the individual to take it down, then to alert the administration of the website in question, and finally to seek legal advice should the post or tweet remain visible. If an organisation sees the post they may have grounds for job dismissal, as many company policies stipulate a ‘no tolerance’ stance on misrepresentation or bullying online.
First Twitter Defamation
Australia’s first Twitter defamation case to reach full trial was in NSW in 2014, where a music teacher was given $105,000 in damages because a student had made fake allegations against the woman online. The user was unaware that the laws for social media defamation are the same as any other defamation, except it is even easier to prove online due to the technology of screenshots, history and mass followers.
The judge of the court case said the comments had a devastating effect on the teacher, Christine Mickle, who took sick leave immediately. The student was never taught by Mickle, but believed she had something to do with his father leaving employment from the school due to health reasons. It was the view of the judge that Mickle was an honest woman deeply hurt by the social media posts by the student, who wrongly suggested she had caused harm on other people. The awarding of damages to the individual being defamed doesn’t solve the blight on their reputation, as often that cannot be reversed and impacts future endeavours.
Orange High School music teacher Christine Mickle. Photo: Central Western Daily
A History of Social Media Destruction
The examples of the loss of employment due to inappropriate online content have continued to grow as social media becomes a daily necessity in the lives of everyone with an internet connection.
In 2009, a 16 year old girl was fired from a marketing and logistics company in Essex because she made a post about her job being ‘boring’. The company had access to her page through the permission of the girl, who had only been in employment for three weeks. The name of the workplace and any other employees were not mentioned in the post, but the manager said that ‘her display of disrespect and dissatisfaction undermined the relationship and made it untenable’. While this is a tame example of making a post or tweet about your workplace, it demonstrates the seriousness of using the internet to express feelings about the organisation that pays your bills. Negative commentary will not be tolerated.
In December 2009, a Connecticut ambulance company fired an employee for calling her supervisor a ‘dick’ and a ‘scumbag’ on her Facebook page. The National Labor Relations Board sued the company for illegally firing the employee after she was denied union representation, which was said to have sparked her outburst on social media. While the case was settled privately between the individual and the ambulance company, it reveals how the use of a single word can create a lawsuit that involves multiple parties and financial settlements.
In 2011, Apalachee High School teacher Ashley Payne was told to resign or be suspended because a parent found pictures of her drinking beer on holiday in Europe two years prior. Her Facebook page was set to private and the photos were still found by the person, who wasn’t a ‘friend’. Teachers had been warned about unacceptable online activities, claiming Payne promoted alcohol use and added profanity to posts. The education sector has become as strict as any other in regards to how a professional is portrayed online, as teachers face the social media savvy students and their unprecedented abilities of access.
The photo Ashley Payne posted on Facebook. Photo: CBS
A high profile example is of Nicole Crowther, who was fired from the television show Glee for tweeting spoilers about episodes that were yet to air. The revelation caused a co-creator to respond aggressively to the extra, writing “Who are you to spoil something talented people have spent months to create? Hope you’re qualified to do something besides work in entertainment. The tweet was removed, but the damage was already done as fans of the show had already read and reacted to the spoilers. Before deactivating her account, Crowther tweeted “They are not doing reshoots because of my careless mistake so shut up haters and leave me alone. Grow up and get a life”. This instance may not concern small businesses and employees, but it is a demonstration of an issue that is argued over social media for an audience to see, and allows no room for mending the mistake.
On the issue, former Prime Minister Tony Abbott said “The thing about social media is that it is anonymous, so it can be much more vitriolic and extreme than normal media and yet it is there for everyone to see. It is kind of like electronic graffiti”. But anonymity isn’t a factor in these cases, as all of the culprits suffered either a loss of employment, a loss of money or a loss of reputation.
The Power of Online Escalation
Justine Sacco, a senior director of corporate communications at IAC, lost her job when she made a tweet to her 170 followers before a flight to Africa. The tweet said “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”. This didn’t just cost employment, as her reputation was destroyed through the retweets by a tech blogger with 15,000 followers. People responded to the social media post with anger, calling Sacco a racist and demanding she be fired from her PR consultancy role immediately. Due to the length of the flight (11 hours), Sacco turned on her phone to see the escalation of her comments and the response by her employer: “This is an outrageous, offensive comment. Employee in question currently unreachable on an into flight”.
Despite being sacked soon after, the humiliation didn’t stop as people raided her social media accounts and found other examples of what was deemed as racism. Sacco has claimed her life has been ruined, saying the tweets weren’t meant to be taken literally: ‘I cried out my body weight in the first 24 hours. It was incredibly traumatic. You don’t sleep. You wake up in the middle of the night forgetting where you are”. The escalation wasn’t just an example of poor social media use, but also the way in which users can become involved in a public shaming. This is turn places pressure on the employer, who must make a decision between representation and loyalty; and it is clear what was chosen in this instance.
The tweet that changed Justine’s life forever. Photo: Twitter
Social media defamation doesn’t just result in job loss; poor self-representation online can rule out an applicant before he/she even reaches the interview stage. At the time of the study in 2014, 93% of recruiters checked the social media accounts of prospective employees. This would likely be closer to 100% in 2015.
In 2009, a 22 year old female was offered a job by the company Cisco, and then tweeted: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
Even though the tweeter was studying a master’s degree in information management, the privacy box was not clicked and her tweet became available to the world. Social media responded by ridiculing the individual and making her employment with Cisco untenable.
Despite the privacy settings available on Facebook and Twitter, photos and tweets are widely available to the public if the searcher knows how to navigate the site in question; and most organisations have social media specialists, so the hopeful aspirant doesn’t even know they have been discounted for an example that paints them in a negative manner. This may not fall under the category of defamation, but it outlines the potential of a person to turn to social media at a time of frustration, dissatisfaction or fatigue.
Adidas state that “Employees are allowed to associate themselves with the company when posting but they must clearly brand their online posts as personal and purely their own. The company should not be held liable for any repercussions the employees’ content may generate”. This example is widely adopted by businesses, as a statement that separates the comment from the employer is desired to ensure the person isn’t typing on behalf of the organisation.
Intel desire employee honesty in their policy: “Did you screw up? If you make a mistake, admit it. Be upfront and be quick with your correction. If you’re posting to a blog, you may choose to modify an earlier post—just make it clear that you have done so”.
Cisco, who have already been mentioned, are clear in saying “Because you are legally responsible for your postings, you may be subject to liability if your posts are found defamatory, harassing, or in violation of any other applicable law”.
The department of human services for the Australian Government state that use of social media by employees cannot be “so harsh or extreme in your criticism of the government, a Member of Parliament from another political party, or their respective policies, that they raise questions about your capacity to work professionally, efficiently or impartially as an APS staff member, such comments would not have to relate to your area of work”.
Here is an example of a company versus an employee: A truck driver, employed by Linfox for 22 years, was terminated due to comments about two of his managers. Linfox said they were seen to be racist, sexually discriminating and derogatory. The driver approached Fair Work Australia in regards to his dismissal, stating that his family set up his Facebook account with full private restrictions, he was in the belief that Facebook posts were only seen by friends, he was unaware as to how a manager could see what was written on his Facebook page and he was unaware of company policy in regards to social media (he never used the internet at work). Linfox believed the comments breached the trust and confidence of employment, and that the employee’s contract implied he should not take any actions to damage the employer or challenge the workplace diversity act.
The decision from this case revealed that the company in question did not have a social media policy in place at the time of dismissal or at the time of the hearing, nor did they acquaint employees with any policies regarding the medium. The truck driver was then compensated for his loss and reinstated in his prior position with full employment. Companies also need to be aware of social media discrimination, and must have a policy in place should an employee post/tweet potentially damaging comments online.
Employers: do you have a social media policy for your business?
Employees: do you know your company policy in regards to social media?
Lawyers state that if you wouldn’t put it in a newspaper, you shouldn’t put it online. But as professionals were the only people with access to the newspaper and anyone can create a social media account, misuse is obviously more common as a ‘Pandora’s Box’ is set to be open. Once people and organisations are completely aware of the damages they can receive for posts and tweets about them, everyone will start suing.
One scroll through a Facebook feed reveals dozens of defamation examples, as social media can take the form of a pub, a coffee shop or even the bedroom in terms of the comments made. As soon as someone feels their reputation has been tarnished, the responsible person can be taken to court. An example is of a Bunbury woman who was sued by her husband for a Facebook post in 2012. The post read “separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse”. The ex husband was awarded $12,500 in interests and costs, as the post had impacted his new relationship and made allegations that were not proven by evidence.
The publishing speed on social media doesn’t allow for an editing process, further thought or a second opinion. Anything based on emotion (and about another party) should be left to simmer before pressing send, as the removal of a defamation post is likely to be too late if others have taken a screenshot, retweeted or shared the information. Racism is a powerful example of this.
A zoo employee in Chicago made comments deemed racist on Facebook while at work, writing “Wassup y’all? At work serving these rude ass white people”, tagging the zoo in the post. This was shared more than 6,000 times, sparking controversy and forcing the zoo to apologise and ensure that the post of the individual does not reflect the values of the employer. The employee then continued to use social media to express views: “I don’t give no f… ppl can say whatever about whatever but I know what I am & racist is not one of em”.
Facebook defamation cases are rising in Australia, and lawyers are aware of the possible income involved in the process. The greater the reach, the greater the risk, and the internet has no boundaries in either element. Australian defamation law is not protective of free speech, and serves in favour of people suing rather than the people being sued.
Defamation online doesn’t differ from any other form of defamation, but due to the nature of the internet there needs to be clarification on what is considered dangerous. For defamation to occur, the following statements must be proven:
- The post/tweet must be communicated to at least one other person: the consumption by a third party is almost guaranteed online.
- The post/tweet must be defamatory: this is generally dependent on the ‘average person of average intelligence’ test.
- The person claiming to be defamed must be identifiable: the post must reference the person, and the ‘average person of average intelligence’ test once again applies.
Anyone can sue for defamation, and anyone can be a publisher, which places everyone at risk. If a person intentionally spreads false information about another person, group or company that is damaging (no matter the medium) they enter the realm of defamation, even if the information is only ‘shared’ or ‘forwarded’.
The amount of damages that can be awarded for non-economic loss under defamation is $355,000, but extreme cases can surpass this cap.
Education and Awareness
The bottom line is simple: be careful what you post online. This applies to messages, to photos and to links shared. Think of every status and photo you post as being seen by everyone you know, whether they are a ‘friend’ or not.
If an individual has a problem with another, it is best to not use social media in any format, even if there is no mention of name or company. Businesses are strong on loyalty and reputation, and desire employees who represent their values in all forms of communication.
Everyone has a bad day, but Facebook and Twitter should be reserved for the positive elements in study, employment and relationships. Communications and media students are well aware of social media destruction, but the example of Justine Sacco demonstrates a lack of awareness in what a person can and can’t post in terms of defamation. While many cases call in favour of the sacked employee due to a lack of company policy, the process and the impact on an individual’s reputation are also a part of an issue that is only beginning to reach the courts.