“Social Media” sounds so benign. It’s “social,” like a dance or a darts club. And “media?” Well, we can handle that, after all, were in it. But when you talk to the lawyers, they’ll tell you that whether you’re the biggest network or the lowliest employee, misuse social media, and it could bite you in the assets. In this article radioinfo’s Steve Ahern talks to some lawyers, network bosses and one of Social Media’s latest casualties, Bruno Bouchet, as he examines the pitfalls and how to avoid them.
Radio companies need clear social media policies that guide their staff and safeguard the company. A precedent setting case last year left no doubt about the position of employers regarding social media. Because Linfox did not have a social media policy in place, Fair Work Australia reinstated an employee who had been dismissed for content posted on Facebook. Fair Work Commissioner Michael Roberts said the absence of a social media policy was “not sufficient” for an employer in this day and age.
In the last month the radio industry has seen two examples of misuse of social media that has resulted in dismissal. Austereo sacked Bruno Bouchet for insensitive comments posted on twitter and Hot 100 Darwin axed Phil Brandel over inappropriate texts.
According to law firm Dibbs Barker:“The first aim [of a social media policy] is to provide guidance to employees so that their use of social media doesn’t get them into trouble (or at least, doesn’t get them into trouble in a way which concerns the employer). However, if trouble cannot be avoided, the second aim of the policy is to provide a firm basis for any disciplinary action (including dismissal) which the employer considers to be necessary.”
dmg CEO Cathy O’Connor has told radioinfo her staff “use social media as a prominent way of communicating and for that reason, it’s important to me that as a workplace, dmg reflects contemporary standards. So we have always allowed social media usage in the workplace. However as many recent examples have shown, there is a need for process and clear standards around what is acceptable.”
dmg has a social media policy and all employees have contractual obligations with respect to their use of social media.
O’Connor says:“We regularly review and update the policy as the digital world moves so quickly. dmg expects its employees to use social media respectfully, not to defame or vilify other people using social media and not to do anything which damages the reputation of dmg or its stations. dmg conducts training to on-air staff and their production teams in particular about the use of social media, as we recognise that it’s not just announcers who have prominent and active online profiles.”
Why is social media so important?
There is a one word answer to this… Audience.
One programmer, who did not wish to be named in this story, told radioinfo,“if you want a job with us these days, you need to have a presence on social media, because this can help us increase audience. In the end a radio company hires staff, especially on-air staff, so they can help build an audience for the station. If they can bring their hundreds of facebook and twitter followers to us that helps us increase audience.”
When you are broadcasting, often the more active and provocative you are the more listeners you get. It’s the same on social media, and the more followers you have, the more valuable you are to your station. But there are dangers.
ARN’s National Content Director Duncan Campbell has told radioinfo that private social media accounts are an area where there can be trouble if not handled properly:
“The biggest issue that gets raised is the distinction between work postings and personal postings. We stress that while you might post on your private site the default is that you should always assume that people will associate you with being an ARN employee. Over the years it’s this key issue that has resulted in people getting themselves into trouble.
“ARN has a clear social media policy that is outlined to everyone who works for us. Our policy stresses the importance of honesty and respect of ARN, other employees, our customers, partners and competitors.”
As sacked 2Day producer Bruno Bouchet told us last week:“It’s so easy for people to use [social media], its easy to underestimate their power. You can send anything that’s on your mind and it could have a big impact. In my case I just didn’t think before I sent my comments… Facebook kind of gets out of hand, you start with people you know, but after a while other people friend you and suddenly there’s lots of people you don’t know there… you have to be really careful, I know that now.”
2Day’s general manager Jeremy Simpson terminated Bouchet’s employment citing a breach of the company’s’ social media policy as the reason. He told radioinfo he did not wish to comment further on the Bouchet case, but confirmed Austereo has a social media policy in place.“Our social media policy is an internal document that is circulated to all staff and is a part of our ongoing induction and training programme and is not intended for external use.”
Bouchet gave more detail, telling radioinfo the specific section of the policy that he breached was the section about “bringing the company into disrepute.”
In the case of Phil Brandel, it was a text message, using the name Claudia White, that got him into trouble. The Northern Territory News also alleged that Brandel created a fake Facebook page that was used to make disparaging remarks about other Northern Territory media, but this has not been proven and radioinfo makes no suggestion than Brandel was involved with the Claudia White page.
In researching this story, radioinfo has seen social media policies from various networks, most of which the networks did not want revealed publicly.
“From a contractual standpoint, an employer has the opportunity to require as a term and condition of employment, that an employee be bound by relevant policies that the company may have – of course it has to have the policies in existence for that to mean anything,” according to workplace lawyer William Szekely of Szekely & Associates.
Best practice in this area comes from the ABC, which has a well worded social media policy and clearly links it to its wider policies that relate to bringing the corporation into disrepute.
It begins with an overall policy statement about social media use, which says:
“Personal and professional use of social media by ABC staff and contractors must not bring the ABC into disrepute, compromise effectiveness at work, imply ABC endorsement of personal views or disclose, without authorisation, confidential information.”
It is also made clear that the policy should be read in conjunction with the ABC Editorial Policies and corporate policies, and then lists all those other policy references. (read more here).
The ABC policy encourages social media use, but also tries to stop staff from falling into the trap of going too far. It says:
Interactive services, which include social media like Facebook, YouTube and Twitter, are part of the ABC’s future as a public broadcaster and increasingly part of the work and private lives of ABC staff and contractors.
The ABC encourages use of social media to engage existing and new audiences with ABC content, and to seek and share user?generated content. Use of social media by staff and contractors is not limited to the workplace and occurs for professional or personal purposes both in and out of work hours.
The following four standards apply to work and personal use of interactive services, with ABC accounts and personal accounts, by staff and contractors, at any time:
1. Do not mix the professional and the personal in ways likely to bring the ABC into disrepute.
2. Do not undermine your effectiveness at work.
3. Do not imply ABC endorsement of your personal views.
4. Do not disclose confidential information obtained through work.
The ABC will enforce the four standards as and when appropriate.
The ABC takes the same approach to official social media accounts as it does to its other policies that govern editorial content in its on-air services, and outlines a range of responsibilities in various areas (read more here).
It is also clear to distinguish between ‘official’ social media accounts and personal ones, saying:
“Staff and contractors are responsible for the content they post on their personal social media accounts. Where a staff member’s or contractor’s personal use of social media contravenes one of the four standards (above), then it may be appropriate for the ABC to respond. In relation to staff, a breach of this policy may be handled in accordance with the relevant ABC enterprise agreement and any relevant ABC policies, and may lead to disciplinary action. In relation to contractors, there may be contractual implications and consequences.”
In commercial media, policies are often linked to termination clauses within individual contracts, as in the example below from a radio employment contract:
We may terminate your employment without notice if we have reasonable grounds to suspect that you are guilty of Misconduct. Misconduct has its ordinary meaning at law and includes but is not limited to:
(b) misrepresentation of your qualifications or employment history;
(c) wilful disobedience of our lawful directions;
(d) conviction of a criminal offence that affects your suitability for your position;
(e) drunkenness or intoxication at work or work functions;
(f) neglect of duty or incompetence;
(g) repeated insubordination or inappropriate conduct towards other employees, contractors, listeners or visitors to the workplace;
(h) conduct of a sort which, in our reasonable opinion, may injure our reputation;
(i) a breach of our Confidential Information…
To help our business operate lawfully, safely and efficiently, we have policies and procedures which set out how all employees are to conduct themselves and processes which are to be followed. You will be expected to follow these policies and procedures… Serious breaches of our policies and procedures could result in termination of your employment.
But if the social media policies that link to the contract letter are not clear, then a station may leave itself open to challenge.
The issue of how to control use/abuse of social media and its degree of permissibility in the workplace is an exponentially growing area, according to Szekely:
“There is also a growing frequency of employees being required to be bound by the policies in force from time to time that have or will be promulgated by the company and that those requirements are NOT a term and condition of employment. That is a way of circumventing the issue of terms and conditions such as policies being modified in the future and thus still being binding, and also sets up a parallel series of rules by which employees must abide. It is understandable that radio stations must have strong and enforceable policies that enable it to control announcers and others, and nowadays, not just in terms of what they say on the radio or TV but by Facebook, Twitter, LinkedIn, etc.”
Custom and Practice
One more potential trap for employers formulating editorial and social media policies is letting one employee get away with breaches while punishing another. If it can be established that it is the practice of the employer to turn a blind eye to breaches, then a dismissed employee could argue that they had not breached any rules because ‘everyone was doing it’ and it was part of the ‘implied terms’ of the employment culture and its ‘customs.’
A 1986 employment law precedent states that a ‘custom’ may become part of an employment contract if it “is so well known and acquiesced in that everyone making a contract in that situation can be reasonably be presumed to have imported that term into the contract.” (BP Refinery v Hastings Shire Council, 1977)
William Szekely has told radioinfo:“Custom and practice is something that is really developing here by rigorous application of either policies as terms and conditions of employment or as stand alone policies. Infringement becomes either a matter of falling back on the disciplinary provisions in the contract of employment or to the terms of the policies themselves and what they indicate.
“The classic area for lawyers is where the policies end up being inconsistent in not only how they are applied but in terms of how the terms of conditions where applicable, might lead to dire consequences. To give a different sort of policy example, saying that staff in an alcohol bottling plant cannot drink on the job, can mean little as an enforceable policy if it is a wide practice and is condoned.
“If it is strictly adhered to, and infractions in all cases suffer the same dire consequences, then in a perverse way, that is fairer on all employees and both management and employees cannot say that noone was treated differently.”
If two people do “similarly silly things and one gets sacked and the other not,” the question arises about whether there has been fairness in the process, according to Szekely, particularly where the two have perhaps worked in the same area of operations within the company. In the public eye, the question is asked what favours the one who did not get dumped, called in.
“The Fair Work Act regulates all employment in Australia where the employer is a corporation and also where the employee is covered by an award (the latest form being Modern Awards). Most Modern Awards refer back to the provisions of the Fair Work Act and there is a provision which enables an employee to take action where he/ she has been the subject of ‘adverse action’ – this is a new ‘animal’, a new creature of statute, which popped up only around late 2009 and which has not as yet been exhaustively tested. But in short if an employee were for example, sacked when seeking to rely on a ‘workplace right’ , then it is said that the workplace right has been interfered with by the employer. This often leads to a lot of argy bargy about whether a termination was lawful or not (and ‘adverse action’ provides a remedy different to unfair dismissal and which has in a sense, a better outcome.”
“Radio and online just click,” says the commercial radio slogan promoting the link between radio and new forms of interaction. Stations want more and more of their employees to engage in more and more social media usage, and this trend will only increase. They want them to build audiences on social media by being topical, provocative and current. But stations will also want employees to show respect and not break the rules.
Employers and employees will have to work together in this area to help each other harness the power of social media without overstepping the line. It is a shared responsibility that needs clear guidelines, mutual support and common sense on both sides.
The old saying ‘think before you speak’ now has a modern parallel, ‘think before you tweet.’