Working With the New ‘Big Brother’

Organizations need look no further than the City of Vancouver to find an example of a vigorous response to reputational risk arising when a firm’s brand becomes associated with individuals or groups who conduct damages or seriously undermine public confidence in the organization’s values, products or goals.

More than just a game was lost when the Boston Bruins beat the Vancouver Canucks in the final game for the 2011 Stanley Cup. The post-game rioting in the streets, injuries and property damage unleashed a storm of controversy over the City of Vancouver’s management of public safety. The riots threatened to send Vancouver’s brand – i.e. a sparkling gem of a city that is safe and well managed – up in flames, as well. B.C. Premier Christy Clark lost no time defending the province’s values. She publicly stated the consequences for the rioters’ actions as follows: “We are going to do everything we can to make sure the public understands who you were. Your family, your friends, your employer will know you were a part of it.”

Enter the social media, today’s technological answer to the omniscient government in George Orwell’s novel 1984.

Social Media: Always Watching, Always Speaking

The ubiquity of cell phone cameras and personal digital assistants has created an environment in which Premier Clark could be fairly certain of identifying culprits and punishing them. After all, what employer wants to see its brand name associated with such activities? Almost in real time, images of the destruction and its perpetrators were uploaded to social networking sites. The virtually worldwide exposure forcefully propelled into the public consciousness the issue of employment consequences for personal actions undertaken outside of the realm of employment.

The Vancouver riots highlighted the evolving expectations of privacy, the significant impact of social media on organizations and the lack of legal clarity about the rights of employees and employers. Camille Cacnio, who was caught stealing in a three-second video clip filmed during the Stanley Cup riots, was fired by her employer in the aftermath of the riot. Similarly, Connor Mcilvenna, a carpenter who posted on his Facebook page that the riots were “awesome,” was promptly dismissed. Arguably, the employers had the right to act to protect their organization’s brand by disassociating the business from any connection to the riot, however tenuous.

In the minutes and hours following the riots, thousand of pictures were posted online by rioters and spectators caught in the post-game melee. While Mcilvenna and others initially celebrated the riot, within 24 hours the mood had turned grim. In a statement to the Toronto Star, Mcilvenna’s superior at RiteTech claimed he received hundreds of emails and didn’t want the company’s reputation linked to Mcilvenna. The “link” was that Mcilvenna had listed RiteTech under his employment information on Facebook. Burrard Acura’s dealership manager Patrick Almeida expressed similar sentiments regarding the termination of Cacnio, telling CBC news, “It’s been pretty ugly.”   

What Does the Law Say?

Canada does not have any laws specifically related to regulating the use of social media and its impact on the workplace. In law, any non-unionized employee can be fired for any reason, at any time, so long as they have been provided adequate notice or pay in lieu of notice. However, “if an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of willful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.”¹

Ironically, had Cacnio and Mcilvenna conducted themselves in a similar manner during the 1994 Stanley Cup riots in Vancouver, their actions would likely not have met the standard for termination with cause. But in an age when cameras are omnipresent, online privacy is non-existent and the ability to communicate with a wide audience is instantaneous, the fallout for both – as well as for their employers – has been significant.

The Vancouver riot case illustrates the risk of an employee’s off-duty conduct negatively affecting an organization. Many examples exist of employee conduct exposing an employer to other legal risks such as libel, intellectual property infringement and defamation.

In a highly publicized case, rock star Courtney Love agreed in March to pay $430,000 to a fashion designer she allegedly defamed in 140-character twitter posts. The designer claimed the posts ruined her business and reputation. Legal firm Border Ladner Gervais LLP called the ruling a ‘wake-up call.’

“We’re likely to see an increase in defamation suits related to social media, but we’re also going to see people become a lot more careful in what they say online once the exposure to defamation suits is more widely understood,” said Michael Smith, a lawyer who specializes in defamation law at BLG.

Mitigating Factor: Social Media Policy

In the absence of specific legislation to address employee activity on social media, companies should develop their own social media policies to prevent and address incidents as they arise. This is a critical element in successfully defending any disciplinary action taken as a result of an incident. Although in the instance of the Vancouver riot, there appears to be a direct link between the actions of the employees and prejudice to the employer, in other instances the link may not be so clear.
A case involving freelance reporter Damain Goddard is one such example. Goddard was released from Rogers Communications in May 2011 following a contentious tweet on his personal account. In his tweet, the sportscaster announced: “I completely and wholeheartedly support Todd Reynolds and his support for the traditional and true meaning of marriage.” In a press release responding to the termination and announcing a complaint to the Human Rights Commission, a lawyer acting on behalf of Goddard characterized the termination as “a clear violation of Damian’s freedom of speech and his freedom of religion.”²

At first glance, the basis for the Human Rights complaint seems clear. Mr. Goddard’s statement, though disagreeable to some, does not violate any laws and was made through a personal account. However, given his role in publicly representing Rogers and the broadcast-style nature of Twitter, the comment may be viewed in a different light. As in the case of the 13 Virgin Atlantic staff fired for attacking customers on Facebook³, making comments that some consumers may see as disparaging their values, choices or beliefs can have serious negative repercussions. The impact on sales, as well as reputational risks, can be considerable. Conceived in this way, the Rogers decision appears to be more an effort to protect the Rogers brand and reduce negative impacts rather than an attack on rights and freedoms.

Like many large organizations actively using social media, Rogers relies on a social media policy for staff. Given the upcoming case against them, and the position that Goddard has taken with respect to his rights, this social media policy and other employment related policies will no doubt play a large role in determining the outcome of the case.

In all instances discussed above – the Vancouver riot, Courtney Love’s court case and Damain Goddard’s tweet – the legal principles in play are not novel. Social media’s relative newness does not mean previous legal principles or employment policies cease to apply or become less important. However, the nature of social media is such that there are no guarantees: an otherwise ordinary day could result in an organization’s interests being damaged virally through the actions of an employee taking place either inside or outside the workplace. Having a compre
hensive social media policy serves as an inoculation against such event and a partial remedy if lightning does strike.

Companies looking to draft a social media policy should begin by working with a social media expert and a lawyer to identify the primary risks social media pose. Once risks are identified, standards can be established to address them. By identifying the primary focus of the policy, and the degree to which employees will be held responsible, businesses can establish a minimum standard that is clear and effective. It is the best defense.

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1Ontario Court of Appeal, Port Arthur Shipbuilding Co. v. Arthurs.
2http://www.newswire.ca/en/releases/archive/June2011/23/c8846.html
3http://www.independent.co.uk/news/uk/home-news/virgin-atlantic-sacks-13-staff-for-calling-its-
 flyers-chavs-982192.html