Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

Over the years, social media has become prominent in almost everyone’s lives. With the popularity of smart phones and access to internet, posting photos and writing status updates online have become second nature. In an employment setting, these social media platforms are often used to reach more customers and drive business. However, the distinction between professional and personal use can become blurry when an employee’s personal social media account does not reflect the employer’s values.

Ontario courts have ruled that information posted to social media outlets constitute data in electronic form, which can be produced as documents under the Rules of Civil Procedure.¹ This means that information drawn from a Facebook post or Instagram photo can be relied upon as evidence in court, even if the content was posted on a privacy protected account that is limited to one’s ‘friends’.

In Lougheed Imports Ltd. two employees were terminated as a result of posting offensive and disrespectful content to both of their Facebook accounts. In this case, it was determined that the employees could not have had a serious expectation of privacy when publishing comments on their Facebook pages.² A similar issue arose in Alberta v Alberta Union of Provincial Employees. In this case, an employee was dismissed after her employer became aware of the contents of her blog, containing unprofessional comments about her co-workers and management.³ The union representing the employee argued that the termination was excessive and that the employment relationship could be restored. However, because the employee had been unapologetic and showed little to no awareness of her actions and refused to remove the blogs, her employment was ultimately terminated.⁴

Employers can take steps to avoid situations like the ones above from happening in the workplace. It is therefore worthwhile for employers to create social media policies to ensure that the employee’s online posts do not impact the company’s reputation and create vicarious liability for the organization.

Social media policies can include instructions regarding the use of the company’s social media accounts, access to personal accounts from company computers during work hours, and the use of personal social media accounts after working hours. Employers should ensure that the social media policy is broad enough to cover all of the different platforms that exist, including any future social media outlets that have not yet been introduced. Employees should be advised that when posting something online and mentioning the company name, they should include a disclaimer that it does not reflect the company’s views. Further, employees should also be advised that any complaints of bullying and harassment will be investigated and will include a review of their online accounts. Employers should also consider providing examples of confidentiality breaches to employees, as well as having them sign off on the policy demonstrating that they have read and understood all of its contents.

These cases prove that social media can be a double-edged sword for employers. On one hand, social platforms can be used as a free promotional tool for a company to increase business. However, it can also create uncertainty and liability issues when social postings cross the line of appropriateness. Therefore, it is important for employers to clearly set out a social media policy with an annual review of such to maintain the company’s values.

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Calculating Equalization Testamentary Capacity Aggravated and Punitive Damages Leaves of Absence in Ontario Co-Parenting In The Age of a Pandemic Corollary Relief Disability Accommodation in the Workplace
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References

¹ Leduc v Roman [2009] OJ No 681 (QL).
² Lougheed Imports Ltd. v U.F.C.W., Local 1518
³ Alberta v Alberta Union of Provincial Employees [2008] A.G.A.A. No. 20
⁴ Alberta v Alberta Union of Provincial Employees [2008] A.G.A.A. No. 20