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Managing Social Media Risks and More
2011 MFOA Annual ConferenceSeptember 22, 2011Dan Michaluk
Managing Social Media Risks and More
Outline
• Harm from off-duty expression
• So you want to blog eh?
• Policy model for managing social media risks
• Current employees as targets
Managing Social Media Risks and More
Current Employees as Communicators
Bob and Sue had a long day. They go to the Dirty Dog Pub after work and, over the course of four
hours, take jabs at their supervisor, Phil.
Managing Social Media Risks and More
Current Employees as Communicators
Jack had a long day. He goes home, cracks open a beer, and boots up his home computer.
Using a picture of his supervisor taken from the company intranet and some internet based
software, he alters the picture so the manager looks ridiculous.
Jack posts it to his Facebook page. He feels good.
Managing Social Media Risks and More
Current Employees as Communicators
• Duty of fidelity applies when employee expression is likely to negatively affect a legitimate employer interest
• All other activity is “private”
• The kind of social interaction we engage in today is more likely to conflict with employer interests
• Duty of fidelity is the basis for conflict of interest and other restrictive policy
• Charter of Rights and Freedoms invites a very contextual balancing, but duty of loyalty can prevail
Managing Social Media Risks and More
Current Employees as Communicators
• Employee speech can negatively…
• …affect an employer’s duty to other employees
• …affect an employee’s ability to do his/her job
• …affect public perception of employee performance
• …affect an employer’s reputation*
*though government entities must tread carefully
Managing Social Media Risks and More
So you want to blog eh?
Tim is the CAO at an upper tier municipality who fancies himself a social media guru. He sends
and e-mail to all that says, “We ought to be leaders in our field. Accordingly, I encourage all of you to use social media to advance our municipal
interests.”
Managing Social Media Risks and More
So you want to blog eh?
• Risks
• Tim could now be responsible for everything his
employees do online
• The municipality may now be responsible for a large
wage and overtime bill for “work” assigned by Tim
Managing Social Media Risks and More
So you want to blog eh?
• Trend in Ontario
• Number of Ontario municipalities using social media
more than doubled in six months (April to October
2010)
• Grew from less than 20 to well over 50, out of a total
of 444 municipalities
Source: Redbrick Communications
Managing Social Media Risks and More
Policy Model for Managing Risk
• Municipalities should consider two policies
• One that guides all employees
• One that guides those who are licensed to speak on
behalf of the municipality
Managing Social Media Risks and More
Policy Model for Managing Risk
• Policy for all employees – theme
• You can do it if you want
• Here’s how you meet our expectations
• Be careful• If you publish to “friends” you’re still accountable• Identifying yourself as an employee comes with risks
• Identify special risks (e.g., relating to care and
control of sensitive personal information)
Managing Social Media Risks and More
Policy Model for Managing Risk
• Policy for all employees – content
• Start with a statement of principle
• Then rules that address• Confidential information, personal information• Respect for other employees, clients, citizens• Conflict of interest, conflict with job duties• Time theft
• Refer to other policies
• Offer support
Managing Social Media Risks and More
Policy Model for Managing Risk
• The operators of the City’s water system have received four reports from residents complaining that their drinking water has a bitter taste and an odd smell. The City’s investigation is underway.
• On the City’s Facebook page, a resident makes a tongue-in-cheek post stating, “My water tastes like it came out of the swamp down the road!” Shelly is a summer student and “deputized” social media communicator for the City.
• Shelly readies herself to respond.
Managing Social Media Risks and More
Policy Model for Managing Risk
• License “deputized communicators” on special terms
• Establish clear objectives
• Create a workable review process
• Measure time, effort and outcome
• Pay wages for work, reward performance
Managing Social Media Risks and More
Policy Model for Managing Risk
• Green light, yellow light, red light
• A model for your deputized communicators
• An attempt to balance control and creativity
Managing Social Media Risks and More
Employees as Targets
Josie is a senior municipal administrator who has gone though some tough personal circumstances.
One fall evening she’s caught driving 140km down a side road under the influence and is
charged.*
*Scenario entirely fictitious
Managing Social Media Risks and More
Employees as Targets
The story runs in the news, and is re-posted by a local citizens’ advocate. Over the next week
about 50 others (all anonymous) post comments. The dialog degrades quickly to one about the
employee’s sexual reputation. Defamatory comments are made about her and other
municipal employees.
What’s a CAO to do?
Managing Social Media Risks and More
Employees as Targets
• Duty to provide a safe and harassment free workplace
• Under human rights legislation
• In some provinces under health and safety
legislation
• There must be a nexus to the workplace
• If there is, there is a duty to take reasonable steps to
provide a safe and harassment free workplace
Managing Social Media Risks and More
Employees as Targets
• A defamation claim is about damage to reputation
• It is a very personal claim, about vindication of
reputation
• It is hard on plaintiffs because it invites a trial of their
reputation
• Injunctive relief is generally not available
Managing Social Media Risks and More
Employees as Targets
• A defamation claim is about damage to reputation
• An employer may have duty to support an employee
who has been defamed (fact-specific)
• But it is highly questionable that supporting a
defamation lawsuit is part of that duty
Managing Social Media Risks and More
Employees as Targets
• Consider the expression, don’t react to it
• Show support for the employee
• If you take steps to facilitate “takedown,” make clear that you’re taking one step at a time
• Frame your engagement properly from the outset
• Tell the employee to get independent legal advice (Defamation claims are time-sensitive!)
Managing Social Media Risks and More
To contact me
Dan Michaluk
daniel-michaluk@hicksmorley.com(416) 864-7253
http://ca.linkedin.com/in/danmichaluk
twitter: @danmichaluk
Managing Social Media Risks and More
2011 MFOA Annual ConferenceSeptember 22, 2011Dan Michaluk