“Hey Kat – I have a friend who was disciplined for a post he made on Facebook. What happened to Freedom of Speech?”
This is a great question and I’m happy to answer it to the best of my knowledge. Some of you may know that I work in a social media training capacity and have worked closely with lawyers & HR experts to develop social media training sessions for small & large organizations. Please keep in mind that I’m not a lawyer, so if you have specific situations requiring a full understanding of employment law as it relates to social media, I recommend speaking with a lawyer.
Okay. Let’s jump in.
Here in Canada, freedom of speech is protected as a “fundamental freedom” through Section 2 of the Canadian Charter of Rights and Freedoms. In the USA, your Freedom of Speech is protected by the First Amendment to the United States Constitution.
Freedom of speech is enshrined in these founding documents to “facilitate robust debate and discussion essential to democratic self-government. It serves as a bulwark against government encroachment on individual expression. It offers a safe harbour against laws or officials seeking to punish dissenters or silence unpopular views.”
– The Economist
And while our charter guarantees freedom of speech, it is limited. “Restrictions on freedom of expression come in many forms including Criminal Code and Human Rights provisions limiting hate speech, municipal by-laws that regulate signage or where protests may take place, civil defamation (libel) actions, and restrictions placed on press freedoms.” (ccla.org)
We know that people ‘vent’ online as therapy. In these cases, people are using social media to blow off steam. Who hasn’t been on the receiving end of Passive Aggressive posts? We can probably all agree that there’s a difference between blowing off steam vs. being violently offensive. Which is why there is a different between what the courts would deem as a threatening post vs. a one-off vent.
As Ken Norman, Professor of Law at the University of Saskatchewan notes: Our law does not allow people to say the most violent kinds of racist things without the law stepping up and that posts on social media can constitute hate speech as they are public statements. (CBC)
The bottom lines is that Freedom of Speech does not mean Freedom from consequence. The question about social media & how freedom of speech relates to employee discipline or dismissal is proof of that.
Keep in mind that the general school of thought amongst most companies & astute HR departments is that what employees does on their time is none of the employer’s business. However, in certain circumstance, online commentary and/or posts can have a negative impact on the employer. In such instances, employer action and discipline may be warranted.
In Canada, we favour the balance of a business protecting their interests with workers’ right to free speech. So in the scenario presented above, if you post something online and it negatively impacts an employee, it may requires discipline.
How will this post affect the reputation of the company? Will it affect potential for new business? Or lost trust in the organization?
Does it include the leak of confidential information? (e.g.: did they share customer information or trade secrets?)
Does the content constitute harassment? Does it potentially violate the criminal code?
Is there anything defamatory about it? (e.g.: was the post libellous?)
Expectation of Privacy
Did the person making the post expect a level of privacy? (e.g.: sharing opinions on a password protected blog.)
Examples of ‘Just Cause’ for a termination due to Social Media post:
(Source: MacLeod Law Firm)
So before it goes that far, here’s what you need to know:
you need to exercise common sense when posting online. I always tell people to ‘Think before, you think, before you post.” We’ve all been caught up in the ‘heat-of-the-moment’ – hello, we just went through one of the longest, most intense election campaigns in our history as Canadians! We probably saw a different side of friends and colleagues that we’ve never seen before. I know I did a lot of Facebook cleansing (and not because of political views, but because people were just plain racist and xenophobic.) And while it’s okay to share your opinion and be open online, you need to be cautious because you are responsible for what you say, both online & offline.
How do can employers and employees protect themselves?
Examples of people who got in trouble with employers for social media posts:
(Sources: David Mangan; Association Corporate Counsel)
Private Organization Example:
As noted by the European Court of Human Rights, the internet, particularly social media as a form of communication via the internet, “has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest.”28 The decision in Lougheed Imports Ltd (cob West Coast Mazda) v United Food and Commercial Workers International Union29 illustrates. Two union activists who had been part of a union certification campaign at Lougheed were terminated after a successful certification vote. The union argued that this was anti-union animus. Lougheed contended that there was just cause 30 for these dismissals based on the Facebook posts of the workers.31 The Labour Board found that the dismissal was just because the aim of the comments was to denigrate supervisors and managers.32 Of particular importance was the rejection of the union’s claim that Facebook comments were akin to inappropriate verbal statements one would hear on a shop floor regularly and should therefore not be treated as anything more than “shop floor” banter.33 An important factor for the Board, the remarks gained greater force because of the medium (which together reached almost 500 individuals). The platform here took the situation past “‘moaning’ or ‘griping’” to a more serious level where harm to the employers’ business interests was found.34
In Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance),12 the employee who was a Personal Care Giver at a nursing home asserted an unjust dismissal claim. The employer terminated the employee for cause due to breach of the confidentiality agreement, insubordination, and conduct unbefitting a Personal Care Giver. The employee had created a website where she published text and pictures about various residents without their consent.
The union defended the employee in the arbitration. It argued that the contents of the blog were akin to what employees would normally discuss during break times and was not out of the ordinary. The arbitrator, however, pointed out that standards of confidentiality in the health care sector are especially high, and the employee had signed a confidentiality agreement. Moreover, the training manual expressly stated that this type of information should be kept out of “social conversation.”
Where social media speech is squarely the issue, adjudication of dismissal (or discipline) for social media speech demands attention to the circumstances and context in which the comments were made. To this point, duration of time between remarks has been considered. In Canada Post Corp v CUPW,113 the grievor posted messages to her Facebook page, reaching more than fifty of her Facebook friends, amongst them were co-workers, for over a month. These postings “contained a number of derogatory, mocking statements about her supervisors and the Corporation.”114 The sustained barrage of remarks distinguished this situation from that of one-off venting of frustration. Comments which may have been ignored if they were spoken, once written online, were recognized as “mean, nasty, and highly personal. They go well beyond general criticism of management and essentially target one person with a degree of venom that is unmatched in other social media cases.”115 This was no “momentary lapse” or “short-lived fit of rage”.116 A worker’s written attacks aimed at a supervisor (whose identity was alluded to but was not named) using her Facebook page can also lead to irreparable damage to the employment relationship.
The American case of Konop v. Hawaiian Airlines36 offers a useful fact pattern to illustrate this point. In this case, the employee created a website on which he criticized his employer, coworkers and union. One online posting stated that the company president employed a “Soviet negotiation style.” The website was not publically accessible and required a password for access. The company president found out about the comments by gaining access to the site using another person’s identity. The court stated that it would be a violation of privacy legislation to access private website content without the website owner’s consent; but that an employer did have the right to access any online information that is available to the general public. The court did not comment on the employer’s reputational interest and is decided with reference to American privacy legislation, but such a facts pattern is not unique to the United States.