Do you trust your employee’s commonsense?

Last night I went along to the first Digital Citizens Event in Sydney. You have heard me mention Social Media Club Sydney before and how I admire the way in which people in the media industry network.

Well a few of their members broke away from the group and wanted to start something a bit different; hence Digital Citizens was born. The alternative organisation is “aimed at attracting a wider audience than marketing professionals” according to Mumbrella.

In a release to announce the launch of Digital Citizens the group said:

“The intention is to provide an open forum which encourages free and frank debate. Digital Citizens is an inclusive, informal organisation dedicated to knowledge sharing and discussion of social, political, ethical and professional issues related to new technologies and the social web. It’s agency agnostic and the only qualification for participating is the desire to speak.

So I’m thinking- this is great. Social media isn’t just about those in the media industry. People in communications, PR, HR, small businesses are all getting into it and want to hear about how to do a good job.

So the topic last night concerned the grey area between one’s personal online presence and representing the brand. There was lots of the usual banter around whether you should be allowed to say whatever you think about your employer or clients if you are using a personal account with a disclaimer etc.

There were some important points around this that were made last night regarding the law in Australia that I don’t think people are aware of. Despite the hugely popular notion of ‘Freedom of Speech’ derived from the First Amendment to the Bill of Rights in the United States there is no explicit legal protection of freedom of speech in Australia.

The Human Rights Act 2004 does talk about an individuals ‘right to freedom of expression’, however for those working in the Australian media industry, this intricate area of the law tries to balance the need for the press to have that ability to disclose information for public interest versus the media’s benefit of releasing information for commercial advantage.

Not a journalist? Why does it impact me?

Often society finds itself in a predicament whereby the law needs to catch up with technological advances as they impact upon how we live life and interact with others. The arena of defamation law is no different, particularly as these advances impact upon the way in which we now communicate. The real implications for defamation law impact upon the ordinary citizen and this is for two reasons. The first is that they are not trained in defamation law and the second is the fact that in modern society, many conversations that would normally take place in person in a verbal conversation are now taking place online in a written format.

Although the comments whether spoken or written remain defamatory in nature, individuals who now publish online are exposing themselves to a much more heightened risk of being prosecuted for defamation.

A lot of people last night on the twitter stream were saying things like ‘just use commonsense’ but as @megsandbacon says:

What’s defamation anyway?

Defamation may be defined as ’the wrong of injuring another’s reputation without good reason or justification” and the part of defamation that we are concerned with is that of ‘libel’ which is defamation by written or printed words, pictures. In the 1996 report on defamation law (A.C.T. Community Law Reform Committee. 1996 [Online]) it was stated that “a defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action” (Electronic Frontiers Australia. 2006, [Online]).

For example in Western Australia, an academic was charged for defamatory statements which were published in an online science bulletin board (Rindos v Hardwick). Harwick made a statement which imputed that Rindos had sex with a minor and basically that his whole career had been built upon his ability as a bully rather than as researcher. Whilst gossiping is rife within most workplaces, these statements were published online where approximately 23,000 academics and students have access internationally and subsequently Hardwick was ordered to pay $40,000 in damages to Rindos as he couldn’t justify the comments or use an alternative defence.

Another recent case in Perth illustrates that even if you have an anonymous account- you can still be found and sued.

I would encourage organizations to think carefully about this. If everyone had commonsense this wouldn’t be an issue, but everyone’s workplace has it’s very own village idiot so what are you going to do to protect your brand from stuff like this?

So now with my HR hat on I would say that employers need to seriously consider an education piece around social media that is built into their current polices, values and culture. Don’t rely on peoples commonsense.