AdvantagesOne important advantage of monitoring employees’ social media use is that it allows businesses to retain control. In particular, it allows businesses to ensure: (a) the company’s messaging is on track and aligned with its public image, (b) no misleading or defamatory comments are being made and confidentiality is not being breached, and (c) any problems which arise are dealt with as quickly as possible. Given the speed at which online content can spread, damage control is essential which is why regular, lawful auditing and monitoring of social media use in the workplace is important.
PitfallsThe main pitfall for businesses to avoid is lack of a legal basis to justify monitoring. A common misconception is that employee consent is not only necessary before monitoring, but also sufficient justification if obtained. However, employees are rarely in a position to freely give consent due to the deemed power imbalance in the employer-employee relationship, which renders their consent invalid from a data protection perspective. Instead, the most relevant legal ground on which to justify monitoring is likely to be on the basis of a legitimate interest. The monitoring must be proportionate to the business need and must be implemented in the least intrusive manner – blanket monitoring is very unlikely to be justified. Ultimately, a business should be able to demonstrate that the employee’s rights are adequately protected. “Transparency” is also a key principle of data protection law, particularly under the forthcoming GDPR. This requires that employees should be fully informed of any processing of their personal data. Consequently, any covert monitoring must be exceptional, targeted, and for a specific purpose.
Practical stepsThere are two key steps businesses can take to ensure any monitoring of employees is fair, and will survive regulatory scrutiny: (1) carry out an impact assessment, and (2) have a social media policy. An impact assessment, carried out before any monitoring, will help to ascertain whether it is justified. Impact assessments aim to confirm whether the benefits of monitoring, such as uncovering misconduct, outweigh the potential risks. Our survey revealed over half of businesses do not conduct impact assessments. This must change, particularly where monitoring (or other processing) is intrusive, and businesses should expect regulators to increasingly request copies of their impact assessments. A comprehensive social media policy, tailored to business needs, should regularly be brought to employees’ attention. A social media policy should clarify whether personal use of social media is allowed, whether employee monitoring will take place, and it should also serve as a reminder to employees that they must not disclose confidential information. Our survey revealed that management of social media risk lags behind day-to-day use. Implementing these two simple steps can help ensure that businesses mitigate the hazards of social media use in the workplace while complying with their legal obligations.
Jonathon Gunn is corporate associate at Faegre Baker Daniels[rb_inline_related]
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