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Power of social media comes with great responsibility

Published on Friday, 25 Oct 2013
Kathleen Healy

The Situation
As news of Twitter’s proposed IPO filters through investment markets, it should serve as a timely reminder for companies that social media platforms are here to stay.

The rapid expansion of social media as a business tool not only creates significant opportunities, but also significant risks, as many companies have found to their detriment. The rate of change in this area also means that a balance between the two can be hard to maintain.

Given that the use by employees of social media platforms is now widespread, employers have to consider carefully what their obligations are towards their staff, customers and stakeholders in respect of employees using Facebook, Weibo and the like.

The Issues
Given the potential of social media on both sides of the scale, employers take many different approaches in managing access to social media at work. Some employers actively encourage staff to use it for networking and marketing, while others severely restrict the use of such tools.

On the positive side, blogging and networking give businesses a great, cost-effective way to raise their profile and communicate with their consumers. They can now send their message to wider and more varied audiences than they could through conventional marketing.

Social media also gives potential customers and clients easy access to key people within the business, and helps create a more diverse network of contacts for them.

Social media is also quickly becoming the centre of the recruitment process, both in terms of companies reaching out to potential candidates and researching their capabilities beyond what’s apparent on their CV.

There is a wealth of other information available through social media sites to provide more of a sense of a candidate. These can range from blogs or “tweets” written by, or about, an individual, to those embarrassing late-night photos posted online by a (so called) friend with lax privacy settings.

Just as it does for candidates, however, the use of social media can have a dark side for employers too – in particular, the mishandling of a social media crisis which can rapidly reach a large audience. What’s more, reputational issues from the outside world can be amplified powerfully and quickly.

Businesses which actively encourage the use of social media and networking sites also lose some control over key employees’ contact lists and client information. They also risk losing confidential information through employee misappropriation or unauthorised leaks.

Consideration must also be given to whether there will be any issues with productivity if employees are allowed access to social media and, as has been seen all too frequently, whether social media could be misused to lead to harassment, discrimination or victimisation of staff or third parties.

The Action Required
Gone are the days when an employer could solve the problems associated with social media by simply “pulling the plug” on internet connections or particular websites. In the age of smartphones, remote access and “bring your own device” policies, such an approach is not only almost impossible, but generally undesirable.

As the adage goes: “With great power comes great responsibility.” So it is with social media. Employers who harness the power of social media in the ways outlined here need to also consider their obligations in doing so.

First, the employer will have to consider their data-protection and privacy obligations when collecting and using data that they find about individuals – even where that data is easily obtained online. This is especially important if employers are considering monitoring employees’ use of social media.

Employers will also have to be careful not to fall foul of anti-discrimination laws. Thanks to the plethora of social networking tools now available, employers potentially have access to a much broader range of information than ever before about their employees and potential employees. That information could include sensitive information about a person’s religion, sexuality or ethnicity. Such information shouldn’t be part of any consideration as to whether a person will be employed, or continue to be employed.

If there is one point worth remembering, it is that employers – even those who seek to restrict the use of social media – should create and maintain robust and carefully considered social media policies in order to manage their risk. These policies should be reviewed regularly to ensure that they keep as up to date as possible with the rapid changes in this landscape.

Given the often complex issues involved in this area, employers should always seek expert advice when implementing or amending such policies.

Kathleen Healy is a partner in Freshfield’s expanding Employment, Pensions and Benefits practice in Asia. Based in Hong Kong, she specialises in advising on Asia-Pacific employment and HR projects, and on the multijurisdictional employment aspects of internal investigations.

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.

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