“SOCIAL MEDIA POLICIES AND WORK: RECONCILING PERSONAL AUTONOMY INTERESTS AND EMPLOYER RISK” Jacinta Buchbach BA (Justice), LLB (Hons) Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law Faculty of Law Queensland University of Technology 2017
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“SOCIAL MEDIA POLICIES AND WORK:
RECONCILING PERSONAL AUTONOMY
INTERESTS AND EMPLOYER RISK”
Jacinta Buchbach
BA (Justice), LLB (Hons)
Submitted in fulfilment of the requirements for the degree of
Doctor of Philosophy
School of Law
Faculty of Law
Queensland University of Technology
2017
Chapter 1 Introduction i
Keywords
Autonomy, blurred boundaries, boundary management, communicative tenets,
corporate social responsibility, employee, employer risk, employment, free speech,
identity, labour law, policies, policy risk, privacy, private/public space, social media,
social media law, social media policy.
ii Chapter 1 Introduction
Abstract
This thesis aims to provide a better understanding of the way in which
organisational social media policies can impact individual personal autonomy
interests. Regulatory frameworks that form the basis for employers in setting standards
of personal behaviour on social media may be favourable for employers yet
detrimental for employees’ personal autonomy interests. The way in which employers
set standards of behaviour becomes important in protecting personal autonomy
interests in online spaces. This is particularly the case where personal autonomy
interests in online spaces might differ from personal interests that exist in physical
spaces. How can employers understand what kind of personal autonomy interests
might need protecting to inform social media policies that are legally enforceable
against employees? My research revealed that some restrictive directives in social
media policies are at risk of dictating standards of online behaviour that unduly
restricts employees’ personal autonomy interests and are likely unenforceable. This is
an important issue for both the employee and employer as the justification for
imposing restrictive policy directives might favour organisational interests irrespective
of legal frameworks and the harm to employees’ personal autonomy interests in online
spaces.
For some individuals, social media can be a digital representation of the self.
Some users carefully manage their personal and professional identities and audiences
online (and offline) in an effort to avoid blurring of these domains. These users have
an ability to exercise some degree of choice in segmenting or integrating their personal
and professional domains. Much of the rhetoric around the management of identity in
social media revolves around autonomous choice in sharing practices and the
affordances and process of platforms. Firms that prescribe restrictive social media
policies can greatly limit the autonomy of their employees. As a result, socially
engaged employees might have little control over the way in which they might manage
their personal and professional boundaries. In fact, some organisational social media
policies actively deprive users of their ability to make autonomous choices about how
they participate in and manage these domains.
The research uses a set of example online social media policies to demonstrate
the way in which some policy directives might inhibit the ways employees use social
Chapter 1 Introduction iii
media. Through the theoretical lens of boundary theory, I argue that restrictive
directives in policies can usurp one’s identity preferences, impede an individual’s
ability to fully participate and manage their identities, and can facilitate the blurring of
personal and professional domains. I also describe how policy directives that restrict
speech can have serious consequences for personal autonomy. The framing of these
policies suggests the need for reform in the legal regulation of employee behaviour
and the extent to which social media policies should be able to collapse one’s personal
and professional boundaries.
The common law stipulates that employer directives that seek to regulate
employee behaviour must be lawful and reasonable. Policy directives that extend
beyond legal limits and too far into an employee’s private life are likely unlawful
and/or unreasonable and therefore unenforceable against an employee. In terms of
speech, the law is yet to reconcile personal autonomy interests on social media and the
extent to which employers can dictate standards that potentially threaten an
individual’s autonomy interests within these contexts. In order to promote personal
autonomy, the law needs to be at least sceptical, if not critical, of organisational
policies that have the potential to threaten an employee’s online identity preference,
participation and speech on social media.
These insights give rise to legal and moral concerns about the legitimacy and
enforceability of these policies against employees. The research will clearly articulate
the various employee risks on social media and provide guidance for employers in
drafting policies that can inform industry best practice. This research will ultimately
show how employers can mitigate these risks in a way that balances users’ autonomy
interests and help employees manage their personal and professional boundaries on
social media.
iv Chapter 1 Introduction
Table of Contents
Keywords .................................................................................................................................. i
Abstract .................................................................................................................................... ii
Table of Contents .................................................................................................................... iv
List of Figures ......................................................................................................................... ix
List of Tables ............................................................................................................................ x
List of Abbreviations ............................................................................................................... xi
Statement of Original Authorship .......................................................................................... xii
Acknowledgements ............................................................................................................... xiii
Chapter 1 Introduction ........................................................................................ 15
1.1 Background of Study ................................................................................................... 16
1.1.1 Employee personal use and privacy on social media ......................................... 17
1.1.2 Speech relating to work ..................................................................................... 23
1.2 Tension Between Private and Work Use of Social Media ........................................... 28
1.2.1 Examples of the extent of the tension between private and work ...................... 29
1.3 Gaps in the Current Research ....................................................................................... 33
1.4 How the Gaps will be Addressed ................................................................................. 34
1.5 Aim of This Thesis ....................................................................................................... 37
1.6 Contribution of this Research to Published Research .................................................. 38
1.7 Key Concepts ............................................................................................................... 39
1.8 Research Methodology ................................................................................................ 41
1.9 Scope and Limits of Research ...................................................................................... 42
1.10 Structure of this Thesis ................................................................................................ 45
Chapter 2 User autonomy in online boundary management ........................... 49
2.1 Introduction .................................................................................................................. 49
2.2 Individual Communication in Physical Spaces ............................................................ 50
2.2.1 Boundary management in physical spaces ........................................................ 52
2.2.2 Segmentation and integration of audiences ....................................................... 54
Chapter 1 Introduction v
2.2.3 Permeability and flexibility of domain boundaries ............................................55
2.2.4 Organisational impacts on boundary management .............................................56
2.3 User Interactions on Social Media ................................................................................59
2.3.1 The architecture of networked publics ...............................................................60
2.3.2 Context collapse .................................................................................................62
2.3.3 User control is diminished in collapsed contexts ...............................................63
2.3.4 The networked self .............................................................................................65
2.4 Disciplinary Action for Online Behaviour....................................................................68
2.4.1 Why users may manage personal and professional audiences ...........................70
2.5 Online Boundary Management .....................................................................................71
2.6 Conclusion ....................................................................................................................76
Chapter 3 Corporate risk and social media ....................................................... 79
3.1 Introduction ..................................................................................................................79
3.2 Corporate Reputation on Social Media .........................................................................81
3.3 Employee Perceptions of Work and Corporate Reputation ..........................................82
3.3.1 The advantages and disadvantages of appropriating employee accounts ...........84
3.4 Categories of Risk and Employer Control ....................................................................86
3.4.1 Defining risk .......................................................................................................86
3.4.2 External risks and stakeholder interests..............................................................87
3.4.3 Consumer protection ..........................................................................................88
3.4.4 Investor protection ..............................................................................................89
3.4.5 Internal risk .........................................................................................................91
3.4.6 Employer control beyond legal compliance .......................................................94
3.5 Legal Obligations Owed to Employees ........................................................................95
3.5.1 Minimum obligations under the Fair Work Act 2009 (Cth) ...............................96
3.5.2 Duties in contract ................................................................................................97
3.5.3 Duties in negligence ...........................................................................................98
3.5.4 Duties in workplace health and safety legislation ..............................................99
3.5.5 Liability for employee harm online ..................................................................100
3.5.6 Bullying ‘at work’ via social media .................................................................103
3.5.7 Corporate risk summary ...................................................................................106
3.5.8 Why personal autonomy matters ......................................................................107
3.6 Regulating Personal Behaviour Through Social Media Policies ................................109
vi Chapter 1 Introduction
3.7 Conclusion ................................................................................................................. 110
Chapter 4 Social media policies and the impact on personal autonomy
interests 113
4.1 Introduction ................................................................................................................ 113
4.2 Policy Directives can Inhibit Personal Use of Social Media ..................................... 114
4.2.1 Selection of social media policies .................................................................... 114
4.2.2 Restrictive directives facilitate blurred boundaries .......................................... 115
4.3 Anonymity and Pseudonymity sanctions ................................................................... 117
4.4 Mandated Work Connection Via a Work Disclaimer ................................................ 118
4.4.1 Restrictive directives hinder boundary management strategies ....................... 121
4.4.2 Restrictive policy directives as a form of organisational control ..................... 123
4.4.3 Participation through self-branding and risk .................................................... 125
4.4.4 Restrictive directives compromise employee privacy ..................................... 126
4.4.5 Restricting identity risks becoming the accepted work standard ..................... 127
4.5 Restricted Work Speech ............................................................................................. 134
4.6 Conclusion ................................................................................................................. 135
Chapter 5 Employee legal rights: enforceability of social media rules and
contesting dismissal ................................................................................................ 139
5.1 Introduction ................................................................................................................ 140
5.2 Fair Work Commission’s Role in Social Media Disputes ......................................... 142
5.2.1 Fair Work Ombudsman’s functions ................................................................. 143
5.2.2 Fair Work Commission .................................................................................... 144
5.2.3 Fair Work Commission’s role in social media disputes .................................. 145
5.2.4 Public speech on social media ......................................................................... 147
5.3 Personal Speech Rights .............................................................................................. 149
5.3.1 Uncertainty in freedom of political communication and public/private
employees ........................................................................................................ 152
5.4 Enforcing Social Media Rules ................................................................................... 155
5.4.1 ‘Good faith’ obligation is unsettled at law ....................................................... 156
5.4.2 Lower courts acknowledge ‘good faith’ in the absence of employee termination
158
5.5 Social Media rules as stand-alone policies ................................................................. 159
Chapter 1 Introduction vii
5.6 Policies Must Contain Lawful and Reasonable Directions.........................................162
5.6.1 Lawful and reasonable directions .....................................................................162
5.6.2 Lawful ..............................................................................................................163
5.6.3 Reasonable........................................................................................................164
5.6.4 Duty to cooperate can assist what is ‘reasonable’ behaviour ...........................166
5.6.5 Unlawful policy directives ...............................................................................167
5.6.6 Testing the limits of lawful and reasonable ......................................................169
5.6.7 A mandated work affiliation may be a double-edged sword ............................171
5.7 Statutory Remedies that Challenge Dismissal for Employee Social Media (Mis)use 173
5.7.1 Unfair dismissal claims must be harsh, unjust or unreasonable .......................173
5.7.2 Termination disproportionate to policy non-compliance .................................176
5.7.3 Employee political speech protections in adverse action claims ......................177
5.7.4 Case study one: Immigration detention officers ...............................................182
5.7.5 Case study two: SBS reporter ...........................................................................183
5.7.6 Employee political speech protections in unlawful termination.......................184
5.8 Employee Policy Involvement ....................................................................................186
5.9 Conclusion ..................................................................................................................187
Chapter 6 A Policy framework based on the communicative tenets of
Corporate Social Responsibility ........................................................................... 193
6.1 Introduction ................................................................................................................194
6.2 Restrictive Directives Undermine Established Norms ...............................................195
6.3 Contemporary Corporate Social Responsibility (CSR) ..............................................197
6.3.1 Five communicative tenets of CSR ..................................................................200
6.3.2 Incorporating legal and moral obligations to protect personal autonomy ........202
6.3.3 Legal compliance in regulating personal speech on social media: ‘must not do’
203
6.3.4 CSR moral obligation in protecting personal autonomy in speech: ‘can do’ ...203
6.3.5 Engagement and stakeholder dialogue and transparency .................................208
6.3.6 A co-creative policy framework .......................................................................210
6.3.7 Limits of a CSR policy approach .....................................................................216
6.4 A way forward: Organisational social media Governance .........................................217
6.4.1 Responsive regulation can oversee policy governance ....................................218
6.4.2 Enforced self-regulation for social media rules ................................................222
6.5 Conclusion ..................................................................................................................224
viii Chapter 1 Introduction
Chapter 7 Conclusions ....................................................................................... 227
7.1 Overview of thesis research ....................................................................................... 227
7.2 Recommendations ...................................................................................................... 236
7.2.1 Advantages of a CSR informed policy for employees ..................................... 243
7.2.2 Limitations of the proposed CSR policy framework ....................................... 246
7.3 Future Research .......................................................................................................... 249
7.3.1 The future of work and technology .................................................................. 249
7.3.2 Pre-work and post-work policy-making .......................................................... 250
7.4 Conclusion ................................................................................................................. 254
Bibliography ........................................................................................................... 255
Appendices .............................................................................................................. 293
Chapter 1 Introduction ix
List of Figures
Figure 2.1. Relationship of user boundary management and organisational control
on social media .............................................................................................. 72
Figure 2.2. Online boundary management components....................................................... 73
Figure 2.3. Online boundary management matrix of behaviours and consequences ........... 75
Figure 3.1. Corporate Obligations in Protecting Stakeholder Interests.............................. 107
Figure 4.1. Restrictive directives limits user boundary management preferences ............. 123
Figure 6.1. Policy continuum of risk and employee autonomy ......................................... 211
Figure 6.2. Braithwaite’s Pyramid: Australian Office of Transport Safety
Responsive Regulatory Philosophy (‘Essence of Responsive
Regulation’ 2011, 483). ............................................................................... 221
Figure 6.3. The Pyramid of Regulatory Strategies ............................................................. 223
Figure 7.1. Corporate social media governance (adapted from @philmennie,
Twitter #ECIIA2015 22 September 2015) .................................................. 253
x Chapter 1 Introduction
List of Tables
Table 1.1. Legal principles that can give rise to termination of an employee’s
contract .......................................................................................................... 25
Table 1.2. Circumstances where an employee can challenge their dismissal ...................... 26
Table 4.1. Social media policy blurring of private and work boundaries .......................... 129
Table 4.2. Restrictive directives on work speech. .............................................................. 135
Table 6.1. Five communicative tenets of modern CSR for business communication
(adapted from Cynthia Stohl et al., ‘Social Media Policies:
Implications for Contemporary Notions of Corporate Social
Responsibility’ (2015) Journal of Business Ethics) ..................................... 200
Table 6.2. Three Communicative tenets of CSR and their relationship to minimum
Australian legal principles ........................................................................... 207
Table 6.3. Policy tips to enhance personal autonomy interests .......................................... 212
Table 6.4. Proposed social media policy underpinned by communicative tenets of
CSR .............................................................................................................. 214
Chapter 1 Introduction xi
List of Abbreviations
ALRC: Australian Law Reform Commission
CSR: Corporate Social Responsibility
ECPA: Electronic Communications Privacy Act 1986 18 USC 2510 et seq
(United States)
FWA: Fair Work Act 2009 (Cth)
FWO: Fair Work Ombudsman
NLRA: National Labor Relations Act (United States)
NLRB: National Labor Relations Board
SCA: Federal Stored Communications Act (SCA) 18 U.S. Code, 2010,
Chapter 121 § 2701 et seq (United States)
xii Chapter 1 Introduction
Statement of Original Authorship
The work contained in this thesis has not been previously submitted to meet
requirements for an award at this or any other higher education institution. To the best
of my knowledge and belief, the thesis contains no material previously published or
written by another person except where due reference is made.
Signature: QUT Verified Signature
Date: _18 September2017________________________
Chapter 1 Introduction xiii
Acknowledgements
For my Family:
Glynn, Hannah and Corey
Principal Supervisor: Associate Professor Nicolas Suzor.
Assistant Supervisor: Professor Matthew Rimmer.
Additional Law School Academic Support: Professor Bill Duncan, A/Professor Terry
Hutchinson, Dr Kelly Purser, Dr Kylie Pappalardo, Mr Ivan Ingram.
Digital Media Research Centre Support: Professor Jean Burgess, Professor Axel
Bruns, Professor Ben Light.
Editing Assistance in the preparation of this thesis from Ellie Gleeson.
Chapter 1 Introduction 15
Chapter 1 Introduction
“We don’t have a choice on whether we do social media, the question is, how
well we do it”- Erik Qualman
In the age of social media, there are new conflicts emerging in the employment
relationship over responsible conduct, personal autonomy, individual privacy, and
freedom of expression. Employers enforce rules in their attempt to regulate their
employees’ behaviour whilst employees are at work and outside of business hours.
These rules primarily mitigate for potential business risks, preserving corporate
reputation and the firm’s compliance with regulators. Generally, these rules can exist
as directives in internal policies, in employee handbooks, or as promissory terms in an
agreement or employment contract. Contract law requires parties to comply with
promissory terms that exist in contract, while employees will obey rules or directives
that exist in organisational policies, provided those directives are lawful and
reasonable. Employees can face disciplinary action or have their employment
terminated if they fail to adhere to policy directives. Alternatively, policy directives
that fall outside the scope of the employment relationship and potentially intrude upon
an employee’s private life are likely unreasonable and unenforceable. In the context of
social media, policy directives that constrain an employee’s autonomy interests in
these spaces may extend beyond the employment relationship. Where an employer
terminates the employee’s employment because of an employee’s alleged breach of a
policy, the employee can institute a range of proceedings in an effort to seek a remedy
for their termination. This thesis will first compare the way in which employees
communicate and manage their boundaries in physical spaces as opposed to online
spaces such as social media. Then I examine the extent to which employers can
discipline their employees for their personal conduct outside of work hours by
reviewing employers and employees use of the online space, their obligations at law,
and the enforceability of social media rules against employees. Among my
recommendations, I propose a principled policy framework that firms should follow
to balance interests and reduce social media tensions in the future.
16 Chapter 1 Introduction
1.1 Background of Study
Social media has become increasingly important to build value for commercial
purposes and enhance personal relationships. Businesses can connect with their
clients, customers, potential employees and other professionals by allowing these
individual stakeholders to engage more directly with the organisation.1 Social media
profiles are also fora for individual communication, self-expression, identity creation,
and relationship-building to a few or many audiences.2 ‘Social media’ encompasses
any online platform that allows individuals to communicate, create content, and
interact socially.3 A social network site is a ‘networked communication platform in
which participants have uniquely identifiable profiles that consist of user-supplied
content, content provided by others, and where connections can consume, produce or
interact with streams of user-generated content provided by their connections on the
site.’4 The platforms include blogs, wikis, photos and video sharing, virtual worlds,
and sites such as LinkedIn, Facebook, Instagram, and Twitter. Since 2007, many
corporations have opened pages and profiles on Facebook, LinkedIn, Twitter, Google+
and other social networks.5 Harquail proposes that ‘organisations have personified
themselves on social media sites to attract the same “interpersonal relationship” with
stakeholders as individuals do with their personal friends.’6 However, there are
increased tensions with employees and businesses using the same online space with
pressing legal issues emerging that can adversely affect the employment relationship.
1 Claire Harquail, ‘Re-creating reputation through Authentic Interaction: Using Social Media to
Connect with Individual stakeholders’ in Ronald Burke et al., Corporate Reputation Managing
Opportunities and Threats (Gower, Farnham, 2011) 250.
2 Susan Park and Patricia Sánchez Abril, ‘Digital Self-Ownership: A Publicity-Rights Framework for
Determining Employee Social Media Rights’ (2016) 53(3) American Business Law Journal 537, 538.
3 Christian Fuchs, Social Media a Critical Introduction (Sage Publications, 2014) 7.
4 Nicole Ellison and danah boyd, ‘Sociality Through Social Network Sites’ in William Dutton, The
Oxford Handbook of Internet Studies (Oxford, Oxford University Press, 2013) 9.
5 Patrice-Ann Rutledge, ‘The Truth about Profiting from Social Networking’ in Efraim Turban,
Narasimha Bolloju and Ting-Peng Liang, ‘Enterprise social networking: Opportunities, adoption and
risk mitigation’ (2011) 21(3) Journal of Organisational Computing and Electronic Commerce 202.
6 Harquail, above n 1.
Chapter 1 Introduction 17
Commentators have identified three phases of the employment relationship
where there are increased tensions and legal risks emerging from an individual’s
personal use of social media: the recruitment, employment, and post-employment
phases. First, in the recruitment phase, tensions exist around ‘cyber-vetting’ whereby
potential employee’s personal social media profiles and content are screened by
employers for recruitment purposes. Researchers suggest this vetting may lead to
privacy concerns and what is termed ‘invisible discrimination’.7 In the employment
phase, employee use of social media in their personal time can damage business
interests or reputation. If there is a sufficient work connection,8 the employer is
vicariously liable for the employee’s actions in certain circumstances that can lead to
a breakdown of the employment relationship. These issues can often stem from the
increasing ‘blurred line’ of what is private online and how far an employer can probe
into an employee’s personal conversations before violating an employee’s privacy and
free speech. Last, in the post-employment phase, employer control over employee
social media connections made during the course of employment has contributed to
ownership tensions over these connections. These tensions can stem from competing
employee and employer interests in building personal and business brands. For the
purpose of this thesis, I have limited the scope of my research to employee personal
use of social media in the employment phase.
1.1.1 Employee personal use and privacy on social media
The way that employees use social media for personal purposes can conflict in
ways that undermine their employers’ interests. The use of an ever-expanding suite of
social media platforms has altered the landscape of our social behaviour. Australian
case law shows an increase in disputes between employees and employers in terms of
7 Richard L Pate, ‘Invisible Discrimination: Employers, social media sites and passwords in the US’
(2013) 12(3) International Journal of Discrimination and the Law 133, 138.
8 See for example where some legislation makes employee acts liable for example, Sex Discrimination
Act 1984 (Cth) s 106. The law has not defined other forms of a work ‘connection’ on social media that
can potentially harm the firm’s interests.
18 Chapter 1 Introduction
after-hours online activity,9 which in some cases can harm legitimate business
interests. Where workplace ‘grumbles’ were once likely to take place over a coffee or
drinks with friends,10 social media platforms have enabled users to discuss work issues
online and connect with a wider audience. The way in which employees are now more
visible online requires employers to monitor platforms and implement strategies or
rules that mitigate for online risk.
Employers will enforce rules in their attempt to regulate personal behaviour to
mitigate for online risk. However, a disconnect exists between what employers
consider appropriate behaviour compared to employee conceptions of behaviour in
online contexts. Some employer rules can reflect social norms that are the ‘rules of
conduct established by members of a group to maintain behavioural consistency’.11
The problem is that some employees may (unintentionally) breach these rules,
particularly when they consider social media as a space where they interact with
various audiences that is separate from their work life. Competing tensions lie at the
intersection of protecting individual privacy and free speech and the need to minimise
business legal risk including preserving business reputation. For example, case law12
suggests that employees consider their ‘off work’ social media conversations are
unrelated to their employment. Private citizens are able to interact with their private or
public audiences in civil debate. Whilst employees are entitled to a private life13
outside of the confines of their work, the divide between what is private and public
remains unclear in networked spaces.
An employee can clearly articulate their personal and professional boundaries in
the physical space; however, with the ubiquitous use of mobile technologies these
9 O’Keefe v William Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311; Linfox
Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097.
10 Leigh Howard, ‘Yours Tweetfully: Social Media, Employment and the Privacy Paradox’ (2012)
86(5) Law Institute Journal 32, 34.
11 Marvin Shaw, Group Dynamics: The Psychology of Small Group Behaviour (New York, McGraw-
Hill, 1981) 121.
12 O’Keefe v William Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311.
13 Rose v Telstra [1998] AIRC 1592. Important to note that an employee entitled to a private life is not
a legal right or legal test.
Chapter 1 Introduction 19
boundaries are now far less clear and require more work to manage. Users have some
control over their own user-generated information through their use of the platform’s
privacy settings. However, user control over information that they have posted to
audiences is lost when members of those audiences share or re-tweet posts to their
networks and other users. Clarke14 argues that while individuals perceive their personal
pages as private, the reality is that user privacy settings cannot guarantee the privacy
of personal communications. A user’s content sometimes becomes accessible to
employers and wider audiences that has ‘far-reaching effects on personal privacy, self-
expression and reputation.’15
Platforms such as Facebook dictate a user’s ability to control their privacy
settings as to who can see their profile page. Facebook once gave users control over
who could search a particular user’s timeline by name. A change in Facebook’s user
privacy settings16 now allows a user’s profile page on their timeline to be publicly
viewed, meaning that profile information and pictures can be exploited by anyone,
particularly employers, for recruiting or surveillance purposes. Prior to the changes,
employers could resort to questionable tactics to access pages set as ‘private’17
including: employee ‘friending’, performing ‘over the shoulder screening’ (whereby
applicants log on to allow hiring managers to view their profiles) or asking employees
for social media login information such as passwords to gain access to an employee’s
social media profile. In the United States, applicant and employee anger and frustration
led to the passing of password protection legislation in a number of States, however, a
federal bill to enact legislation failed before Congress.18
14 John Clarke, 'Social Media and Privacy' (2010) 29(3) Air Medical Journal 104.
15 Patricia Sánchez Abril, Avner Levin and Alissa Del Riego, ‘Blurred Boundaries: Social Media
Privacy and the Twenty-First-Century Employee’ (2012) 49(1) American Business Law Journal 63,
64.
16 ‘Reminder: Finishing the Removal of an Old Search Setting’ Facebook (10 January 2014)
<http://newsroom.fb.com/News/735/Reminder-Finishing-the-Removal-of-an-Old-Search-Setting>.
17 William Smith and Deborah Kidder, ‘You’ve been tagged! (Then again, maybe not): Employers and
Facebook’ (2010) 53(5) Business Horizons 491, 494.
18 United States Congress, Password Protection Act 2015 (12 May 2015) The bill was introduced in a
previous session of Congress but was not enacted
https://www.govtrack.us/congress/bills/114/hr2277>.
20 Chapter 1 Introduction
Since May 2012, 25 states in the United States have passed laws limiting
employer access to an applicant’s and/or an employee’s personal social media
accounts.19 Although the scope of prohibited conduct varies, each state provides that
it is unlawful for an employer to retaliate against an individual for refusing to consent
to that employer’s prohibited actions.20 Some jurisdictions provide for a private cause
of action21 where a fine can range from $500 to $1000 but such a low penalty may not
provide employers with an effective deterrent to engage in the prohibited activity. A
Federal bill first introduced in May 2013 and later failed in May 2015, was an attempt
for a national measure to prevent employers from requiring their employees and
applicants to disclose their social media passwords.22
Australia has no social media password or relevant privacy legislation that
protects user privacy. There is anecdotal evidence in Australia that, at job interviews,
some employers ask potential employees whether they will allow the employer to
become their Facebook ‘friend’.23 The law also makes no provision or cause of action
for a privacy tort.24 While such a tort remains a possibility, Witzleb argues that its
recognition would ‘presumably require a case in which the plaintiff suffered serious
harm to his or her privacy interests and could not rely on any established cause of
19 National Conference of State Legislatures, ‘Access to Social Media User Names and Passwords’ (7
June 2016) < http://www.ncsl.org/research/telecommunications-and-information-
technology/employer-access-to-social-media-passwords-2013.aspx>
where 15 states apply to educational institutions and one applies to landlords.
20 Linda Hollinshead, ‘Social Media Privacy and Protection Laws’ (2013) 40(3) Employment
Relations Today 73, 74.
21 Ibid 74-78. Private cause of action available to Washington, Illinois, Michigan, Utah.
22 United States Congress, above n 18.
23 Louise Floyd and Max Spry, ‘Four Burgeoning IR issues for 2013 and beyond: Adverse action,
social media & workplace policy, trade union regulation (after the HSU affair); and the QANTAS
aftermath’ (2013) 37 Australian Bar Review 153, 164.
24 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. Recognition of
a possible tort of invasion of privacy in Australian Broadcasting Corporation v Lenah Game Meats
Pty Ltd (2001) 208 CLR 199; 185 ALR 1. Individual’s right to privacy existed in Grosse v Purvis
(2003) Aust Tort Reports 81-706.
Chapter 1 Introduction 21
action.’25 Cases involving actual employees are distinguishable from a mere job
applicant for two main reasons. First, a job applicant is not an employee bound by an
employment agreement that might imply employees and employers owe obligations
of good faith to each other.26 Second, an applicant’s posts do not come under employer
scrutiny in the same way that employee’s posts do when certain posts have the
potential to cause reputational harm or damage to their employer.27 Minimal
protections mean that employer demands potentially threaten user privacy in online
contexts.
For users wishing to communicate and interact with others on social media
platforms, a private Terms of Use agreement binds that user and the platform provider.
An employer, as a third party, may not request access to an employee’s personal social
media passwords as this is likely to incite a user to breach the platform’s Terms of Use.
For example, LinkedIn agreements forbid users to disclose their passwords to anyone
else.28 The Australian Law Reform Commission (ALRC) acknowledged this growing
privacy concern in the areas of work, education and other opportunities.29The paper
considered that the inappropriate conduct of employers or other individuals by virtue
of their position in demanding access to an individual’s personal social media account
could amount to a serious invasion of privacy and a right to a statutory cause of
action.30 Currently, no common law privacy right or statutory protection exists that
25 Normann Witzleb, 'A Statutory Cause of Action for Privacy? A Critical Appraisal of Three Recent
Australian Law Reform Proposals' (2011) 19(2) Torts Law Journal 104. There remains a possibility of
a statutory cause of action for ‘Serious Invasions of Privacy in the Digital Era’ as provided for in
ALRC issues paper 43 (November 2013)
<http://www.alrc.gov.au/sites/default/files/pdfs/publications/issues_paper_43.pdf>.
26 See Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 where the Court did not
confirm that the implied obligation of good faith existed in employment contracts. Other implied
duties in contract exist such as the duty of cooperation with each other.
27 Floyd and Spry, above n 23.
28 ‘LinkedIn User Agreement’, LinkedIn (5 September 2013) <https://www.linkedin.com/legal/user-
agreement>.
29 Australian Law Reform Commission, ‘Serious Invasions of Privacy in the Digital Era:’ Issues
Paper 43 (IP 43) October (2013) [179]-[180].
30 Ibid [180].
22 Chapter 1 Introduction
limits an employer’s ability to access and view employees’ personal interactions on
social media.
Socially engaged employees can exercise their autonomy in the way in which
they personally participate in online contexts but they are unable to prevent an
employer from viewing or obtaining evidence of their personal social media
interactions.31 Privacy laws32 are largely ineffective in safeguarding personal
autonomy in online discussions. This is because privacy law is more concerned with
the compliance of how entities collect, use and store personal information than
protecting the privacy of online conversations or interactions of users.
Another option to remedy the personal privacy issue is to amend current
workplace surveillance laws in each state and substitute with a national framework.
Workplace surveillance legislation only exists across three jurisdictions and focuses
on the workplace rather than personal social media activity. These laws generally
recognise that employers can monitor workplaces for the purposes of protecting
property or ensure employee health and safety. New South Wales, the Australian
Capital Territory and Victorian legislation addresses the employment relationship and
employee surveillance but is limited to being in effect during the hours the employee
is physically at work.33 In Queensland, the Act34 neglects to address the employment
relationship and is limited to computer, listening, tracking and camera surveillance.
Significant privacy reforms might consider uniform workplace surveillance for all
states and territories as well as new extended definitions of a workplace that might
provide greater privacy protections for employees. Personal information submitted to
employers via online portals that organisations outsource to a cloud service provider
also raises broader privacy concerns of the security of that information. Whilst these
31 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 where the
High court did not rule out a Privacy Tort. See also in the United States, the Federal Stored
Communications Act (SCA) 18 U.S. Code, 2010, Chapter 121 2707 forbids employers from
improperly obtaining social media content of its employees.
32 Privacy Act 1988 (Cth).
33 Workplace Surveillance Act 2005 (NSW); Workplace Privacy Act 2011 (ACT); Surveillance
Devices Act 1999 (Vic).
34 Invasion of Privacy Act 1971 (Qld).
Chapter 1 Introduction 23
are relevant and important user privacy concerns, security of big data and cloud
computing are beyond the scope of this thesis.
1.1.2 Speech relating to work
In Australia, a range of legal principles can protect some forms of employee
speech on social media but only in certain circumstances. An employees’ speech in
relation to their political opinion35 and their trade union activity36 are general
protections under the Fair Work Act 2009 (Cth). Australian law prohibits an employer
from taking ‘adverse action’37 against an employee because the employee has voiced
their political opinion or is involved in industrial activities.38 Some employees have
become accustomed to using electronic media such as social media as a way to amplify
their industrial concerns and as a conduit for gaining industrial strength by
representative unions.39 However, this type of speech protection is not a guarantee
especially in circumstances where an employer might take adverse action against an
employee to protect its business reputation. Where a representative’s speech has the
potential to affect business reputation, some courts have favoured employer’s interests
over the employee’s work speech. For example, in the Board of Bendigo Regional
Institute of Technical and Further Education v Barclay40 the court accepted the
employer appellant’s reasons for its dismissal action that included protecting the
35 Fair Work Act 2009 (Cth) s 351.
36 Ibid s 346.
37 Ibid s 341 defines workplace rights that a person had under the Fair Work Act or other workplace
law. Fair Work Act 2009 (Cth) s 342 defines adverse action where an employer took action against the
employee because they exercised a workplace right. The causal nexis between the alleged adverse
action and the alleged workplace right is critical to the prospects of a workplace rights claim. Fair
Work Act 2009 (Cth) s 351 prohibits adverse action taken because a person has one of the
discriminatory attributes listed in that section, for example, political opinion and trade union activity.
38 Ibid s 346.
39 Leon Gettler, ‘Social Media’s Industrial Strength’, Business Spectator (13 March 2012)
<http://www.businessspectator.com.au/bs.nsf/Article/social-media-nurses-sandilands-yumi-stynes-
the-cir-pd20120313-SBTAE?opendocuments&src=rss>.
40 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290
ALR 647.
24 Chapter 1 Introduction
business’ reputation and rejected the notion that it involved the respondent’s trade
union position.41 Though this case involved the respondent’s use of the TAFE’s email
account, tribunals or courts have had little adjudication where a dispute involved an
employee’s work-related speech in social media contexts.
An employer will consider the context of an employee’s personal speech online
and whether the conduct warrants any disciplinary action. General protections and
other provisions of the Fair Work Act 2009 (Cth), the common law and individual
employment contracts influences the way in which employers might seek to resolve
personal speech issues on social media. The Fair Work Act 2009 (Cth) provides
dismissed employees with avenues to seek remedies, for example re-instatement,
where their dismissal was a result of them voicing forms of protected speech; for
example, political opinion or trade union activity. At common law, implied obligations
might exist in contract where an employee owes their employer a duty of good faith,
fidelity42and a duty to cooperate. Similarly, employers have limits in how far they can
supervise their employees’ private activities. Unfair dismissal cases43 have shown
when an employer can lawfully terminate an employee’s employment due to their
conduct outside of work hours. This includes dismissals where an employee’s personal
speech harms business interests or likely damages the employment relationship or
employee duties. Thornthwaite asserts that employers regulating for off-work
behaviour can expand the scope of the employee’s common law obligations of good
faith and fidelity without a reciprocal increase in obligations and responsibilities from
employers.44 Employee conversations in online environments can loosely relate to
their work that can unintentionally damage their employer’s business interests or their
duties as employees. In the absence of any industry guidelines about online speech
generally, there appears to be confusion and uncertainty surrounding what employees
can personally say in online forums and the extent to which their interactions affect
41 Ibid [128].
42 Harris v Digital Pulse Pty Ltd (2002) 40 ACSR 487 however the implied duty of mutual trust and
confidence was struck out in the High Court case of Commonwealth Bank of Australia v Barker
(2014) 253 CLR 169.
43 Rose v Telstra [1998] AIRC 1592; Little v Credit Corp Group Ltd [2013] FWC 9642.
44 Louise Thornthwaite, ‘Social Media, unfair dismissal and the regulation of employees’ conduct
outside work’ (2013) 26(2) Australian Journal of Labour Law 164.
Chapter 1 Introduction 25
work. When employees’ interactions have an impact on their work, employers can
legitimately terminate employment agreements. Table 1.1 shows some legal principles
that can give rise to an employer’s right to terminate an employee’s contract. There
are also circumstances where an employee can challenge their dismissal See Table 1.2.
Table 1.1. Legal principles that can give rise to termination of an employee’s contract
An employer can terminate an
employee’s contract if:
Relevant case or statutory provision
The employee’s conduct shows their
intention to repudiate the contract of
employment through conduct that
damages business interests or likely
damages the employment
relationship or duties as an employee
Rose v Telstra [1998] AIRC 1592
The employee’s conduct has
undermined the employer’s business
interests
Concut Pty Ltd v Worrell (2000) 176
ALR 693.
Serious misconduct Fair Work Regulations 2009 (Cth) r
1.07
The employee breaches their implied
duty of trust and confidence
Blyth Chemicals Ltd v Bushnell (1933)
49 CLR 66
The employee breaches their implied
duty of good faith
Commonwealth Bank of Australia v
Barker (2014) 253 CLR 169
The employee breaches their duty to
cooperate with their employer.
(employers also owe this duty to
employees)
Campbell v Backoffice Investments Pty
Ltd (2009) 238 CLR 304
26 Chapter 1 Introduction
The employee breaches an equitable
duty of loyalty to serve employer’s
interests
Harris v Digital Pulse Pty Ltd (2002) 40
ACSR 487
The employee fails to obey a lawful
direction; for example, policy directives
that are not incorporated in contract
R v The Darling Island Stevedoring and
Lighterage Company Limited; Ex parte
Halliday and Sullivan (1938) 60 CLR
601
Table 1.2. Circumstances where an employee can challenge their dismissal
Employee application Statutory provision or case
Unfair dismissal application: A
dismissal will be unfair where the
dismissal is harsh, unjust or
unreasonable
Fair Work Act 2009 (Cth) ss 346, 385
Criteria for considering harshness of
dismissal: valid reason and the process
of dismissal
Fair Work Act 2009 (Cth) s 387
Adverse action: where an employee is
dismissed on the grounds of: trade
union activity; political speech; and
other protected characteristics
Fair Work Act 2009 (Cth) ss 341,342
Fair Work Act 2009 (Cth) s 351
Fair Work Act 2009 (Cth) s 346
Unlawful termination application: the
employee is able to make a claim when
they do not qualify for a remedy under
general protections in the Fair Work Act
2009 (Cth)
Fair Work Act 2009 (Cth) s 772(1)(f)
Chapter 1 Introduction 27
Breach of contract where the
employer direction was not a lawful
and reasonable direction that the
employee was required to obey
R v The Darling Island Stevedoring and
Lighterage Company Limited; Ex parte
Halliday and Sullivan (1938) 60 CLR
601
28 Chapter 1 Introduction
There are serious risks for both employees and employers with the increased use
of social media. For employees, the main issues are generally online privacy and
protecting general speech and speech relating to work. For employers, an employee’s
speech in online spaces can cause business harm and reputational damage and the
possibility of firms being vicariously liable for an employee’s intentional act against
another worker, their clients, customers, third parties or investors. The ways in which
the law has dealt with these competing tensions on social media has largely been
through the Fair Work Commission acting as adjudicators in the unfair dismissal
jurisdiction.
1.2 Tension Between Private and Work Use of Social Media
There is more to competing social media tensions than employees simply taking
care to ensure that they keep their private thoughts to themselves to avoid any
disciplinary action. The increasingly pervasive nature of social media is blurring the
boundaries of the private/public and personal/work space. In the employment context,
this is leading to real tensions between employers mitigating for risk and harm and
employees protecting their personal autonomy interests on social media. Employees,
and users generally, should care about the issues that this thesis sets out to explore.
This is because an individual’s social media use brings to the forefront a fundamental
and unresolved conflict in the law between the interests of employers in managing
their risk and workers’ personal autonomy interests of free expression, participation
and control over their own social interactions and connections. Current Australian law
has failed to keep up with these emerging issues, and there is significant doctrinal
uncertainty about how these tensions will be resolved across a range of legal disputes
in the future.
Social media has changed the way in which employees communicate about
personal and work issues. An employee’s ‘private’ conversations now take place in
online semi-public spaces to much larger potential audiences in ways that can extend
beyond that user’s control. There are sometimes linkages between an employee’s ‘off
work’ social media conversations and their work that may cause the employer harm45
45 Rose v Telstra [1998] AIRC 1592. What these ‘linkages’ to work might be in the context of social
media is unclear.
Chapter 1 Introduction 29
in terms of reputational damage or damage to the employment relationship. An
employer may take disciplinary action against the errant employee that may, in serious
cases, include dismissal. The potential audience reach and permanency of an
employee’s personal conversations on various platforms can increase legal risks for
firms, including the enhanced potential for both harm to business reputation and an
employer’s liability for an employee’s online interactions.
1.2.1 Examples of the extent of the tension between private and work
Employees should care about the way in which their personal use of social media
can have adverse consequences for their continued employment. The increasing
number of Australian media reports and emerging case law give some insights into the
kinds of personal interactions that might blur employees work and non-work roles on
social media that can lead to disciplinary action or their dismissal. Some media reports
have illustrated prominent female users calling out the offensive and abusive
behaviour of men on their personal social media accounts that have led to their abuser’s
dismissal or standing down from their work, to more serious criminal charges. Other
media reports show the way in which employers might deny employees some of their
likely employment protections by using an individual’s personal social media post as
grounds to stand them down from duty or instigate disciplinary proceedings. I will
outline some of the more recent media reports in this part and overview the case law
as examples or case studies in the latter chapters of the thesis.
One example of a media report that blurred personal and work domains involved
a man’s abuse on his personal Facebook page aimed at feminist columnist Clementine
Ford. In that case, columnist and blogger Clementine Ford was the target of
misogynistic comments for her views against the deluge of abuse and online
harassment from men. Michael Nolan commented by calling her a ‘slut’ on her
Facebook page.46 Ms Ford discovered that, after looking at Nolan’s Facebook profile,
he worked as a supervisor at Meriton Apartments. She also found evidence of his racist
46 Megan Levy, ‘Hotel worker Michael Nolan sacked over Facebook post to Clementine Ford’ The
Sydney Morning Herald, (online) (December 1, 2015) < http://www.smh.com.au/national/hotel-
worker-michael-nolan-sacked-over-facebook-post-to-clementine-ford-20151130-glc1y4.html>.
30 Chapter 1 Introduction
and offensive taunts in other Facebook conversations.47 Ms Ford sent screenshots of
these conversations to his employer, Meriton, who stood Nolan down, then fired him.
Ford publicly posted Meriton’s written statement of Nolan’s dismissal and their
intolerance for his behaviour on her Facebook page.
Another case involved a high-profile female politician calling out a man’s
abusive comments on her Facebook page. Chiropractor Chris Nelson and former
Liberal Party member posted racist and offensive messages on Senator Nova Peris’
Facebook page. Nelson called Ms Peris a ‘black c---’ and telling her to ‘f--- off’ and
‘go back to the bush and suck on witchety [sic] grubs’ amongst other comments.48
Rather than block Nelson or request that he deletes his comments, Peris instead
reposted his comments on her page to show her audiences the ‘ugly side of this
country’. Nelson initially claimed his Facebook profile had been hacked49but later
admitted to posting the comments and pleaded guilty to a criminal charge of using a
carriage service to offend. Nelson’s personal Facebook profile showed his name and
image. Soon after Nelson’s arrest, the Liberal Party confirmed Nelson’s expulsion
from the party. On Twitter,50 Rotary Australia acknowledged Nelson was an ex
member of Rotary and distanced itself from his comments.
A Police Integrity Commission stood down a male police officer pending a
misconduct investigation after the officer used their private Facebook account with the
47 Clementine Ford Posts, Facebook, (November 27, 2015)
<https://www.facebook.com/clementineford/posts/921563617920733>.
48 Rachel Olding, ‘Chiropractor Chris Nelson pleads guilty to racist posts on Nova Peris’ Facebook
Page’ The Sydney Morning Herald, (online) (June 21, 2016)
<http://www.smh.com.au/nsw/chiropractor-chris-nelson-pleads-guilty-to-racist-posts-on-nova-peris-
facebook-page-20160621-gpnxog.html>.
49 Georgina Mitchell, ‘NSW Chiropractor Chris Nelson charged over Nova Peris racist Facebook
posts’ The Sydney Morning Herald, (Online) (May 30, 2016) <http://www.smh.com.au/federal-
politics/political-news/nsw-chiropractor-chris-nelson-charged-over-nova-peris-racist-facebook-posts-
20160530-gp7gat.html#ixzz4CAZAt64G>.
50 Rotary Australia, Twitter Posts, Twitter (28 June 2016)
<https://twitter.com/rotarydownunder/status/736469968103952384>.
Chapter 1 Introduction 31
handle, ‘Jack Zane’ to abuse another female Member of Parliament.51 A number of
New South Wales police officers used their private Facebook accounts to taunt Ms
Leong on social media with racist and sexist comments including a string of Facebook
posts that mocked her ethnic background and referred to her father as a ‘swamp
monkey.’52 The officers’ abuse came after Ms Leong introduced a bill to the New
South Wales lower house aimed at ending the use of drug detection dogs in public
without a warrant. Ms Leong also posted a picture on her official Facebook account
where she criticised police armed with tasers and a sniffer dog patrolling trains. She
received an avalanche of criticism about the train post and a wave of unrelated, sexist
and racially driven abuse, some of which other officers posted, shared, liked and
applauded via their private Facebook pages. Ms Leong notified the Police
Commissioner claiming that the serving officer had attacked her on Facebook with
other officers having ‘liked’ his offending posts. While these media reports illustrate
high-profile women calling out racist and sexist abuse that have impacted their
abuser’s employment in some way, other recent media reports and emerging cases
feature the way in which employers might use social media as a means to discipline or
dismiss employees to prevent harm to business reputation. The problem is that
employers that take disciplinary action against their employees for their (mis)use of
social media may undermine personal autonomy interests and employee protections at
law.
An example of the way in which competing tensions can collide on social media
is the recent standing down of a La Trobe university academic. La Trobe University
suspended and then later reinstated ‘Safe Schools’ founder and academic, Roz Ward.
On her personal Facebook account and in a closed Facebook group Ms Ward allegedly
referred to the Australian flag as ’racist’ where she then stated she would like to replace
51 ‘Police Officer suspended over ‘racist’ Jenny Leong Facebook posts’ ABC News Queensland
(online) (17 April 2016) <http://www.abc.net.au/news/2016-04-17/police-officer-suspended-over-
jenny-leong-facebook-posts/7332708>.
52 Eammon Duff, ‘NSW Police officers caught trolling Greens MP Jenny Leong on Facebook with
racist and sexist posts’ The Sydney Morning Herald, (online) (April 10, 2016)
<http://www.smh.com.au/nsw/nsw-police-officers-caught-trolling-greens-mp-jenny-leong-on-
facebook-with-racist-and-sexist-posts-20160409-go2f9g.html>.
32 Chapter 1 Introduction
it with a red flag to represent a symbol of her Marxist views.53 La Trobe became aware
of the post and suspended Ms Ward. La Trobe’s stance was a reaction in preserving
the university’s reputation where Ms Ward expressed her political view at a time when
there was intense scrutiny of the Safe Schools program that was closely associated
with the university. A law firm threatened federal court legal action against the
university on grounds that their action in suspending Ms Ward was unlawful as it
contravened the university’s enterprise agreement, the Fair Work Act and Victoria’s
Equal Opportunity Act. La Trobe later reconsidered the matter and withdrew the
allegations, reinstating Ms Ward.
The SBS case was another instance involving an employee’s personal political
opinion that might harm their employer’s reputation. That case involved the summary
dismissal of an SBS reporter due to his comments on his personal Twitter account.
Scott McIntyre tweeted inappropriate comments on his personal Twitter page on
Anzac Day 2015 (and again on Anzac Day in 2016, albeit with a different employer).
Mr McIntyre commented about Australia’s involvement in previous wars including,
‘Remembering the summary execution, widespread rape and theft committed by these
‘brave’ Anzacs in Egypt, Palestine and Japan’.54 At the time, Mr McIntyre’s Twitter
profile displayed his employment as an SBS sports reporter with 35 000 followers.
SBS distanced itself from his personal comments and later terminated his employment
for breaching the SBS social media policy. The reporter instigated proceedings in the
Fair Work Commission in an unlawful termination application.55 In Chapter 5 of this
thesis, I further explain how this case was a missed opportunity for the Commission in
determining the scope of the protection of an employee’s political opinion in the
context of social media.
53 Henrietta Cook, ‘La Trobe University withdraws allegations against Safe Schools co-founder Roz
Ward’ The Age (Melbourne) (online) (June 3, 2016) < http://www.theage.com.au/victoria/latrobe-
university-withdraws-allegations-against-safe-schools-cofounder-roz-ward-20160603-gpbc1t.html>.
54 Scott McIntyre Twitter Posts, Twitter (April 25, 2015)
<https://mobile.twitter.com/mcintinhos/status/591869302497746945>.
55 McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768.
Chapter 1 Introduction 33
1.3 Gaps in the Current Research
There is little scholarship on the methods by which employers might reconcile
competing employee/employer tensions when regulating their employee’s personal
behaviour in online spaces. The uncertainty reflected in current law demonstrates the
need to look at these issues through a framework grounded in personal autonomy in
public/private spaces. An employee-focussed approach is intended to emphasise
values of privacy in terms of self-expression, identity and boundary control that are
currently absent in the doctrinal approaches of resolving employment disputes. A
theoretical basis will be useful to explain the way in which some users might exercise
their personal autonomy to inform their identity preferences and boundary
management choices. A second contextual policy framework can then explain a way
in which employees might maintain their personal autonomy interests whilst also
maintaining the pragmatic ideals of business.
My research uncovered two gaps in the literature and the law. First, the literature
is unclear in how far an employer can infringe the private life of their employees in
online spaces. While there are many cases where an employer can discipline an
employee for their personal conduct in physical spaces and outside of business hours,
the law is still evolving in relation to personal conduct in online spaces. Also absent
from the literature is the identification of what an employee’s personal autonomy
interests might be in online spaces that differ from an individual’s interests in the
physical space.
The second significant gap in the literature is whether policies strike an
appropriate balance between legitimate business interests and an employee’s
autonomy interests. If there is an imbalance, how can employers and the law reconcile
personal autonomy interests against business risks in online spaces? There is limited
literature on a rights based approach informing social media guidelines for Australian
employers to regulate the private conduct of their employees. An online Google
search56 reveals examples of social media policy templates but these are generic
policies and may not be legally transferrable from one jurisdiction to another. The
56 See for example Chris Boudreaux, ‘Social Media Policy Database’ Social Media Governance,
(online) (18 August 2016) <http://socialmediagovernance.com/policies/>.
34 Chapter 1 Introduction
literature mainly focuses on a firm’s risk-based approach to social media policy
development but there is little information on what personal autonomy interests and
rights were at risk from their enforcement. The literature and the law offers minimal
insight into the extent of a regulator’s oversight or rigour in establishing the legal
enforceability of social media rules against employees.
1.4 How the Gaps will be Addressed
In this thesis, I build upon the work of four key academic authors in this area of
research. First, I revise the work of Ollier-Malaterre et al.,57 in relation to boundary
management in online spaces. Then I look at McDonald and Thompson58 in their work
on shifting the boundaries of employer control over employees in contested spaces.
Next, I draw from Thornthwaite’s59legal analysis and methodology in exploring social
media policies that focuses on employees’ and employers’ obligations at law. Last, I
apply and extend Stohl et al.’s60literature on social media policy and their concerns in
relation to a firm’s corporate social responsibility in promoting their employees’ use
of social media platforms. This thesis essentially explores the intersection of three
fields of study around employer practices in their regulation of social media: boundary
management strategies, employment law and the common law, and the communicative
tenets of Corporate Social Responsibility.
57 Ariane Ollier-Malaterre, Nancy Rothbard and Justin Berg, ‘When Worlds Collide in Cyberspace:
How Boundary Work in Online Social Networks Impacts Professional Relationships’ (2013) 38(4)
Academy of Management Review 645.
58 Paula McDonald and Paul Thompson, ‘Social Media(tion) and the Reshaping of Public/Private
Boundaries in Employment Relations’ [2015] International Journal of Management Reviews 1.
59 Thornthwaite, above n 44. Note that in Louise Thornthwaite, ‘Chilling Times: Social Media
Policies, Labor Law and Employment Relations’ (2016) 54(3) Asia Pacific Journal of Human
Resources 332-351, the author examines policy clauses that relate to employees expressing their
grievances and discontent about work. This thesis adopts a similar method to Thornthwaite but instead
uses different research questions to expand the way in which some clauses can impact personal
autonomy interests.
60 Cynthia Stohl et al., ‘Social Media Policies: Implications for Contemporary Notions of Corporate
Social Responsibility’ [2015] (July 2015) Journal of Business Ethics 1.
Chapter 1 Introduction 35
To assist in filling the gaps in the literature, this thesis addresses two main
research questions:
1. How do current legal doctrine and employment contractual
agreements balance employee and employer social media interests?
Sub-question: What are the uses of social media for business
and how can firms mitigate for social media risk?
Sub-question: What kind of employee interests need protecting
on social media?
Sub-question: What employee protections and obligations exist
at law and to what extent does the law require employees to
comply with social media rules?
2. How should personal use of social media be regulated in an effort
to achieve greater personal autonomy in online speech?
The first research question considers concurrent employment obligations at law
and the legitimacy of social media rules that protect business interests. In answering
this question, I examine employer statutory obligations owed to employees and other
stakeholders and employer practices that might limit the way in which employees use
social media. The implementation of a social media policy is one way in which
employers might seek to curb employee speech that can potentially harm business
interests. Social media policies within a risk framework attempt to set employee
standards of behaviour.61 Policies that go too far in protecting legitimate business risk
can have detrimental consequences for personal autonomy interests.
I then use a selection of social media policy directives as examples to illustrate
the kinds of autonomy interests that are at risk. Through the lens of online boundary
management theory, the research will show the way in which some employer policy
directives might harm one’s personal autonomy interests. Policies set the parameters
for employee behaviour and expectations that are consistent with the organisation’s
culture whilst reflecting emerging societal norms.62 The research will unveil whether
existing regulatory frameworks are effective in combating these challenges and, if not,
61 Ibid.
62 Sanchez Abril et al., above n 15, 113-114.
36 Chapter 1 Introduction
propose other mechanisms that may help employers preserve both personal autonomy
interests and business interests.
I then provide an overview of the common law in terms of the enforceability of
social media policies against employees and review statutory protections that can help
employees challenge their dismissal as a result of their social media (mis)use. Whilst
the common law and employment law provide some limits of permissible and
legitimate control over personal behaviour, the law needs to evolve to provide more
clarity in the social media space. At common law, an employee must obey lawful and
reasonable directions.63 This means that an employer may not impose directives that
extend beyond the contract of employment or are an unreasonable directive for which
the employee is not bound to obey. Employees also generally owe an overall duty of
fidelity in contract to their employer64 and a duty to cooperate65 but the law is still
unsettled as to whether an employee or employer owes an implied duty of good faith.66
Employees that have had their employment terminated for their personal use of social
media can, in some circumstances, seek a remedy in Fair Work applications. The
research will show that overall, the law remains unsettled in how some speech issues
are resolved in the social media space. These tensions raise questions as to whether
social media policies are an effective regulatory tool to balance competing
employee/employer legal interests.
In addressing the second research question, this thesis argues there are better
ways for employers to regulate personal social media use. Rather than hinder an
employee’s personal autonomy interests and risk breaching contract, employers should
strive to promote personal autonomy with help from the law and its regulators. I
63 R v Darling Island Stevedore & Lighterage Co Ltd, Ex parte Halliday and Sullivan (1938) 60 CLR
601, 621-622.
64 Harris v Digital Pulse Pty Ltd (2002) 40 ACSR 487, 491; Consolidated Paper Industries Pty Ltd v
Matthews [2004] WASC 161, [60].
65 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [25]. The parties to any contract
each owe a duty of cooperation that operates in a way that is consistent with the express terms of the
contract. See Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, [168].
66 Ibid. A decision in which the employer is not bound by a mutual duty of trust and confidence. The
case left uncertainty as to whether a duty of good faith exists in employment contracts.
Chapter 1 Introduction 37
consider the ways in which Corporate Social Responsibility (CSR) can help inform
minimal legal compliance and employer best practice in social media policy-making.
The absence of any policy framework that conceptualises employee tensions on social
media poses a real threat to personal autonomy if employers are free to draft policies
that are purely risk-driven and one-sided to advance business interests.
Whilst the CSR literature is relatively diverse and lacks an exact and
uncontroversial meaning,67 there are common themes that are broadly stakeholder
centric.68CSR communicative theory highlights important stakeholder speech
protections that can help employers legitimise how they regulate personal interactions
when drafting their organisational social media policies. A policy framework that is
informed by CSR communicative tenets allows us to make a normative argument about
whether or not constraints should be imposed on employers when they exercise control
when setting norms of personal behaviour on social media. While there are limits to
the proposed CSR framework, one of them being it is voluntary and non-binding for
employers, it is an important first step to provide some guidance for employers in the
way in which they can re-shape the law in the future of work and improve business
practice. The framework adopts a rights-based approach to policy-making that shows
how employers can do more to protect personal autonomy by preserving various forms
of speech and helping employees manage their personal and professional boundaries.
1.5 Aim of This Thesis
This thesis aims to evaluate the competing tensions that can arise from an
employee’s personal use of social media. I propose a principled, rights-based
framework that can help promote business best practice, set out minimum standards
for employers to manage and mitigate risk and, more importantly, protect personal
autonomy interests on social media.
67 Onyeka Osuji, ‘Corporate Social Responsibility, Juridification and Globalisation: “inventive
Interventionism” for a “paradox”’ (2015) 11(3) International Journal of Law in Context 265, 268.
68 Glen Whelan, Jeremy Moon and Bettina Grant, ‘Corporations and Citizenship Arenas in the Age of
Social Media’ (2013) 118(4) Journal of Business Ethics 777, 780.
38 Chapter 1 Introduction
1.6 Contribution of this Research to Published Research
This thesis will highlight some employer practices that inhibit the way in which
employees personally make use of the social media space and what these employee
interests might be. The ubiquitous use of social media has facilitated further blurring
of personal and work interests that has prompted some employers to implement social
media rules or policies to mitigate risk. These risks range from protecting the firm’s
proprietary interests to protecting other employees’ safety against another employee
for discriminatory, defamatory or bullying posts. Recent developments in the field of
social media conduct at work have been limited and arbitrary.69 Similarly, there is little
Australian academic literature that addresses employee personal use of social media
and the impact of regulatory processes on personal autonomy interests in online
spaces.
The historical master-servant employment relationship under the common law
posited there was nothing of a servant’s life that was off limits to employer control.70
The law now acknowledges that employees are entitled to a private life71 and only in
exceptional circumstances will an employer be given an extended right of supervision
over the private activities of employees.72A legally binding agreement negotiated
between an employer and an employee in the form of an employment contract is now
the vehicle for the legitimation and regulation of the employment relationship73 that
may also incorporate other workplace policies including social media policies. Policies
set the parameters for employee behaviour and expectations that are consistent with
the organisation’s culture, whilst reflecting emerging societal norms.74 Commentary75
69 Paula McDonald, Paul Thompson and Peter O’Connor, ‘Profiling Employees Online: Shifting
Public–private Boundaries in Organisational Life’ [2016] Human Resource Management Journal, 14.
70 Thornthwaite, above n 44, 165.
71 Rose v Telstra [1988] AIRC 1592.
72 GrainCorp Operations Ltd v Markham (2002) 120 IR 253, 267.
73 Byrne v Australian Airlines (1995) 185 CLR 410, 436.
74 Sanchez Abril et al., above n 15.
75 Jennifer Klass et al., ‘Social Media: The ongoing Evolution of Internal Controls’ (2013) 20(10) The
Investment Lawyer 11; Andrew Bland and Sarah Waterhouse, ‘Social Media in the workplace:
practical tips for best practice policies’ (2013) 16 (2) Internet Law Bulletin 45, 46; Sheena Hamilton
Chapter 1 Introduction 39
from legal professionals have attempted to clarify the way in which workplace social
media policies should mitigate against identified legal risks; however, there is little
academic consideration of whether regulating employee behaviour in this way
effectively reconciles competing employer/employee interests.
The findings in this thesis reveal the extent to which employer practices in
regulating personal behaviour in online spaces can harm employee autonomy interests
and the extent that these practices are legally enforceable against employees. In
adopting an employee-focused perspective, the study makes a considerable
contribution to the existing literature on policy development. Through critical analysis
of competing interests in the context of an employee’s personal social media use, the
research will clearly articulate the various risks to assist employers draft policies and
inform industry best practice. The research will provide some guidance in how
employers can mitigate these risks in a way that balances users’ autonomy interests.
The research will fill an important gap in Australian social media law literature. This
thesis proposes a policy framework that helps to inform business best practice in a
firm’s overall social media governance.
1.7 Key Concepts
This research takes a critical approach to key concepts around boundary
management, Corporate Social Responsibility tenets, and existing common law and
employment regulations as they relate to employees and work. I critically examine the
key differences between the physical and the social media space in how users might
choose to manage their personal and professional boundaries. I overview traditional
boundary management literature from Christena Nippert-Eng76, Blake Ashforth, Glen
and Robert Kaiser, ‘The Essentials of an Employee Handbook’ (2013) 17.7 The Young Lawyer 3;
Catharine Cooksley, ‘Three Steps to protect your business when a key employee leaves’ (2013) May,
Employer’s Law, 14.
76 Christena Nippert-Eng, Home and Work: Negotiating Boundaries through Everyday Life.
(University of Chicago Press, 1996).
40 Chapter 1 Introduction
Kreiner, Mel Fugate77 and Ellen Kossek78 that broadly outlines the way in which users’
segment or integrate their various audiences and the factors that affect one’s boundary
permeability or flexibility. I then draw on online boundary management literature from
Ariane Ollier-Malaterre, Nancy Rothbard and Justin Berg79 where I examine the range
of management behaviours in online contexts and the way in which a subset of users
might choose to manage their online professional and personal boundaries.
In the physical space, users manage their personal and professional boundaries
by segmenting or integrating audiences. For example, users might use physical
screens, partitions or separate geographical locales to include or exclude others in a
conversation. On social media, spatial and temporal boundaries as well as architectural
affordances that constitute the ‘relationship between the technical features of social
media and the people who perceive and use them,’80 make it more difficult for users
to structure and separate the various roles an individual maintains in different domains.
For example, some platforms have affordances that collapse boundaries so that one
interacts with their entire networked audience. The entire audience might be comprised
of a number of audiences for which the user performs a variety of roles. A role that a
user chooses to perform for one audience in the entire networked audience may not be
an acceptable role to perform for other audiences. Users that are actively involved in
managing their online boundaries undertake considerable work to carefully segment
or integrate their respective audiences that might include the formation of platform
groups. Users performing online boundary management in this way have the ability to
exercise a greater degree of autonomy than they do in managing their audiences in the
physical space. This is because users that manage their online audiences can choose
77 Blake Ashforth, Glen Kreiner and Mel Fugate, ‘All in a Day’s Work: Boundaries and Micro Role
Transition.’ (2000) 25(3) Academy of Management Review 472.
78 Ellen Kossek et al., ‘Work–nonwork Boundary Management Profiles: A Person-Centered
Approach’ (2012) 81 Journal of Vocational Behavior 112.
79 Ollier-Malaterre et al., above n 57, 650.
80 Emmanuelle Vaast and Evgeny Kaganer, ‘Social Media Affordances and Governance in the
Workplace: An Examination of Organizational Policies’ (2013) 19(1) Journal of Computer-Mediated
Communication 78, 80.
Chapter 1 Introduction 41
from a range of motivational behaviours in how they wish to present themselves to
their various audiences.
After explaining how users’ autonomy is integral to how individuals choose to
manage their online personal and professional domains, I then examine some employer
tensions that can limit an individual’s personal autonomy. Through the lens of online
boundary management theory, I investigate the kinds of personal autonomy interests
that are at risk using a selection of policy directives as examples. I adopt an approach
developed by Stohl et al.,81 that argues for a co-creative communicative approach that
might ease these tensions. I propose that communicative tenets of Corporate Social
Responsibility (CSR) can provide a moral obligation on employers to do more than
what is legally required when making social media policies that dictate personal
behaviour. This research makes a normative claim that a social media policy informed
by communicative tenets of CSR can provide a better governance mechanism that can
preserve personal autonomy in speech on social media.
1.8 Research Methodology
This thesis proceeds in three main phases. First, I critically analyse the law with
respect to employer/employee employment obligations, statutory obligations, case law
and employment law under the Fair Work Act 2009 (Cth). I then conduct a theoretical
analysis of boundary management in both the physical and online contexts and source
some policy directives as examples to highlight the personal interests that are at risk.
Using these same select policies, I then apply current legal doctrine to determine the
enforceability of these rules against employees. Last, I examine communicative tenets
of CSR as an important first step to inform policy-making in the regulation of personal
behaviour on social media.
The first phase of the research involves an in-depth review and doctrinal analysis
of the legal tensions that can exist in the employer/employee relationship with the
identification of potential employee obligations, protections and employer risk factors.
I overview a range of primary and secondary material using doctrinal research
methods, as social media use and its connection with employment is still an evolving
81 Stohl et al., above n 60.
42 Chapter 1 Introduction
legal grey area. As there is little case law and legislation pertaining specifically to
social media regulation and employment, I evaluate common law principles,
Commonwealth and state case law as well as employment decisions from the Fair
Work Commission and federal courts. I examine scholarly literature from multi-
disciplinary secondary sources including studies, industry professional reports, journal
articles from a variety of media, communications and business management fields.
The second phase involves theoretical boundary management research to
understand the ways in which a subset of users might choose to manage their personal
and professional boundaries on social media. I reconcile the ability of users to make
these choices against a selection of policy directives and further identify potential legal
tensions that I identified in phase one. I describe how some employer regulatory
mechanisms that attempt to control personal interactions on social media potentially
blur work and personal boundaries and are inadequate for maintaining personal
autonomy interests. From this analysis, I determine some real risks to an individual’s
personal autonomy if employers attempt to regulate their employee’s personal
interactions in this way.
In the third phase, I develop a normative conceptual framework that will address
and ease competing tensions in the employment relationship. The CSR conceptual
framework that I propose will focus on the economic interests of employers in
managing risk and business reputation on the one hand, and conceptions of personal
autonomy interests of employees on the other. This focus on personal autonomy
foregrounds values of autonomy in speech, expression, and full participation on social
media. I speculate that a principled and self-enforced approach to policy-making can
assist best practice for Australian employers. I then illustrate what a simple CSR-
informed social media policy might look like and suggest a way in which regulators
and other actors might sustain this framework in practice.
1.9 Scope and Limits of Research
This research in this thesis focuses on employer practices in regulating
employees’ personal social media in the corporate sector and is limited to an analysis
of the common law and Fair Work Act 2009 (Cth) provisions. The scope of the
research centres on tensions in the employment relationship, but I also foreshadow
Chapter 1 Introduction 43
social media recruiting practices and post-employment tensions for future research in
the final chapter. The research excludes any analysis of Enterprise Agreements (EAs)
that might have social media clauses or procedural obligations with respect to
employee grievances or disputes. It also excludes consideration of the alternative
public service model of social media governance that requires a higher level of
cooperation and accountability for state and federal public employees. These employee
obligations are usually located in codes of conduct and, in some circumstances,
statutory Public Service Acts.
The research uses some policy directives from organisational social media
policies to illustrate the way in which employer practices can inhibit employees’ social
media use. I sourced the policies from online databases where the firm had a
connection with Australia. I am cognisant of the fact that some of these policy
directives have limitations due to their generalizability and are not a representative
sample.
There are limitations in the extent to which the key conceptual frameworks
answer the two research questions. In answering the first research question, I
overviewed boundary theory that explains the processes by which a subset of users
may manage their personal and professional boundaries. I did not undertake any
qualitative research that might support the way in which users might actually manage
their online audiences. In terms of the second research question, I did not undertake
any research into organisational governance studies or the ways in which an
organisation’s culture might affect policy development for policy-making. Whilst
Corporate Social Responsibility (CSR) has an inexact definition and broad scope, my
research focussed on a particular model of CSR – communicative tenets of CSR in
business communication and, by extension, the way in which this framework can
include Australian legislation. The communicative tenets reflect social media as
another communicative medium and employees’ rights as corporate stakeholders
within this medium. The proposed policy framework is not without its limitations, for
example it is non-binding and voluntary for employers, but it aligns with other
academic research in terms of taking an employee-focussed approach towards
protecting employee rights within these online spaces. My goal is to develop
recommendations for best practices; the further task of examining how firms can be
encouraged to voluntarily adopt these best practices must be left to later work. As a
44 Chapter 1 Introduction
safeguard, I suggest a way in which the law can help sustain this framework. My
research did not extend to principles of regulatory CSR.
Chapter 1 45
1.10 Structure of this Thesis
To achieve the aim of this thesis, Chapter 2 sets the scene by explaining the
different strategies modern employees might use to manage their personal and
professional identities on social media. The strategies in managing online audiences
are different in important ways from strategies that employees have previously used to
segment their audiences in physical spaces. I first discuss how users might manage
their personal and professional identities and audiences in physical spaces. I then
overview a set of unique affordances in networked platforms that can challenge users’
control in performing and managing different versions of self in online contexts.
Despite the challenges in networked contexts, I explain that users can exercise their
autonomy to make safe choices about how they wish to present online versions of
themselves and how they might manage their personal and professional domains on
social media. I explain how boundary management practices that apply in the physical
space can adapt to the online space. Online boundary management theory provides a
guide for a subset of users to manage their personal and professional audiences on
social media. Users can choose from a menu of boundary management behaviours in
how they might strategically navigate their online personal and professional audiences.
I reinforce that user autonomy in making these choices is an essential element of one’s
boundary management practices.
In Chapter 3 I highlight that organisational use of social media can be a double-
edged sword that can enhance value and increase business risk. In this chapter, I
answer the latter part of research question one: How do current legal doctrine and
employment contractual agreements balance employee and employer social media
interests? I answer the first sub-question in relation to employer interests in this
research: What are the uses of social media for business and how can firms mitigate
for social media risk? I briefly explain how corporate use of social media can provide
business opportunities but, at the same time, can increase risk and legal liability that
affects corporate reputation. This chapter investigates how corporate social media use
and its degree of control over its employees’ personal use might harm both parties’
interests. I discuss how fewer controls over employees’ personal interactions on social
media might expose the firm to greater business risk. I overview employers’ common
law duties and statutory obligations pertaining to employees and highlight ways in
which employee interactions on social media can be sources of risk that can harm the
46 Chapter 1
firm’s proprietary interests and wellbeing of other employees. A social media policy
is one way in which corporations can regulate their employees personal conduct to
mitigate for risk. A policy’s framing limited to protecting a subset of stakeholders,
including consumer and investor interests, potentially destabilises the importance of
protecting an employee’s personal autonomy interests. Employees’ personal interests
are important because some individuals consider it an entitlement or ideal to self-rule
that is valuable for choice and a sense of self and identity. I make some conclusions
that employers should strive to promote personal autonomy by suggesting that
regulating personal behaviour requires a delicate balance of employer control and
reinforcement of employee trust.
In Chapter 4 I demonstrate the way in which some example social media policy
directives potentially blur employment and private domains that can impact an
employee’s personal autonomy interests. In this chapter, I answer the second sub-
question of research question one: What kind of employee interests need protecting on
social media? To answer this sub-question, I use a small selection of social media
policy directives as examples to illustrate the kinds of personal autonomy interests that
these directives might inhibit. In examining the extent to which policy directives might
harm an employee’s personal autonomy interests, I reveal that some restrictive
directives conform to organisational membership that potentially usurps individual
autonomy interests in two main ways. First, I discuss how restrictive policy directives
can fundamentally disrupt the balance between personal, community and corporate
space in ways that have detrimental effects for personal autonomy, particularly the
ways in which users identify and participate in online communities. Second, I evaluate
restrictive policy directives through the lens of online boundary management theory
to show the extent to which these employer practices are dangerous for personal
autonomy interests, particularly the ways in which employer control undermines how
employees might manage their personal and professional boundaries. After this
discussion, Chapter 4 then demonstrates the way in which some policy directives
harm employee speech interests by restricting how employees discuss work-related
issues and foreshadow that the law may protect against these speech restrictions. I
conclude that more regulatory oversight of policy development is required to prevent
employees’ general acceptance of social media policies that can seriously undermine
their own interests on social media.
Chapter 1 47
In Chapter 5 I explore the ways in which employees can preserve their personal
autonomy interests on social media by analysing sources of law that help protect these
interests. This chapter addresses the last sub-question of research question one: What
employee protections and obligations exist at law and to what extent does the law
require employees to comply with social media rules? I examine the ways in which
employees can legitimately challenge the enforceability of organisational social media
rules that might breach contract. I then investigate how terminated employees –
dismissed because of their (mis)use of personal social media – may seek a statutory
remedy under the Fair Work Act 2009 (Cth). I investigate the Fair Work Commission
and Fair Work Ombudsman’s functions and limitations and the extent to which they
assist employees resolve personal autonomy interests and competing employer
tensions on social media. I then explore the ways in which employees can challenge
their firm’s social media rules by focussing on employee legal obligations, the legal
limits of employer lawfulness and reasonableness in social media policies, and their
enforceability against employees. I explain the way in which restrictive policy
directives that potentially usurp online identity and speech interests can have serious
incursions at law for both employers and employees. Next, I assess the ways that Fair
Work Act 2009 (Cth) applications might assist former employees challenge their
dismissal. I discuss how recent cases challenge employee speech protections when
reconciled with employer interests in protecting brand reputation. I make some
assertions that uncertainty in the law and employer practices are far from ideal for
promoting personal autonomy interests. I propose a more principled way in which
employees might contribute to protecting their personal autonomy interests in speech
on social media.
In Chapter 6 I address the second research question: How should personal use
of social media be regulated in an effort to achieve greater autonomy in online speech?
In answering this question, I set out the normative framework that forms the basis of
this thesis. In terms of protecting employee speech interests on social media, I propose
a new policy framework based upon the five communicative tenets of Corporate Social
Responsibility (CSR): free speech, collective information sharing, respecting
difference, engagement and stakeholder dialogue, and transparency. I explain the ways
in which this framework is most useful for conceptualising personal tensions on social
media and how it can help employers balance the legal constraints in managing risk
48 Chapter 1
with the moral obligation to do more to protect personal autonomy. Fundamentally,
corporations are more powerful in the employment relationship. This approach may
help guide employers in developing appropriate and fair policies and avoid overly
restrictive policies where the power imbalance often places employees in the firing
line. I acknowledge that non-binding policies have limitations and as a voluntary
measure, not all corporations will adopt this approach. I conclude by speculating that
employers who adopt a more principled and rights based policy framework can
promote both employee/employer interests. I propose external actors can widen
employee/employer dialogic engagement in the policy-making process that can help
framework sustainability and avoid restrictive directives that can cause more harm for
employee/employer interests.
In the final chapter, I make recommendations that propose ways in which
employers and the law can do more to preserve personal autonomy interests in
networked spaces. I suggest that employers should remove restrictive directives from
social media policies; there is enhanced certainty in the current law; there is increased
regulatory intervention; greater scrutiny of policies; and the adoption of the proposed
framework as policy best practice. I conclude the thesis by outlining how policy best
practice might help ameliorate challenges in the future of work.
Chapter 2 User autonomy in online boundary management 49
Chapter 2 User autonomy in online
boundary management
2.1 Introduction
This chapter explains the different strategies modern employees might use to
manage their personal and professional identities on social media. These strategies
differ in important ways from historical strategies employees used to segment their
audiences in physical spaces. First, I discuss how users may manage their personal and
professional identities and audiences in physical spaces. I then overview a set of unique
affordances in networked platforms that can challenge users’ control in performing
and managing different versions of self in online contexts. Despite the challenges in
networked contexts, I explain that users can exercise their autonomy to make choices
about how they present online versions of themselves and manage their personal and
professional domains on social media.
When users communicate in online spaces they connect and write for an
audience but do not always have the same degree of control over the audience as they
do in physical spaces. This is because in physical spaces such as cafes and bars, walls
and physical barriers separate an individual from their audiences – such barriers do not
exist online. ‘Physical third places’ are public areas that are neither home nor work,
where individuals gather and engage in conversations.82 Individuals present a version
of self that is dependent upon how they wish their audience to perceive them. Using
boundary management theory, I review the strategies that individuals might employ to
segment their audiences and retain control over their online identities.
In contrast, the online environment gives users less control over how they might
manage their audiences and perform their identities. The affordances of networked
platforms can sometimes work against users maintaining online identities in ways that
82 Charles Soukop, ‘Computer-Mediated communication as a virtual third place: Building Oldenburg’s
Great Good Places on the World Wide Web’ (2006) 8(3) New Media and Society 421, 423.
50 Chapter 2 User autonomy in online boundary management
collapse one’s imagined audience into one field of 'Friends'.83 One consequence of
collapsed contexts is that users performing different versions of self tend to have less
control over their conflated identities. The lack of a user’s control over platform
privacy settings and the platform’s architecture can facilitate the blurring of user
boundaries. The blurring of one’s boundaries can lead to adverse consequences for that
individual’s employment.
Online social networks can collapse distinctions between public and private
spaces and no longer fit within the conventional approaches of employment law. This
is because these legal approaches typically relied on the basis that employees have a
greater degree of control over how they communicated in physical spaces. The
problem with employees personally interacting online is that user control over these
communications is limited and platform affordances can easily connect an employee’s
personal interactions with their work, blurring the boundaries employees may wish to
maintain for themselves.
Just as users organise their different worlds in the physical space through
enforcing their own boundaries around different audiences, users have the ability to
recreate these boundaries online in new and different ways. Online boundary
management theory provides a guide for a subset of users who may want to actively
manage their online personal and professional boundaries. This theory will show that
users may choose from a menu of behaviours and their consequences in how they
strategically navigate their online personal and professional audiences.
2.2 Individual Communication in Physical Spaces
Individuals retain a degree of control over how they wish to communicate within
public physical spaces. Traditionally, physical interaction and connection often
occurred within physical spaces such as in a pub or a café. ‘Third places’ are informal
public gathering places that are neither home nor work, where conversations take
place.84 The third place offers an individual autonomy in seeking relief from the
83 Alice Marwick and danah boyd, ‘I Tweet Honestly, I Tweet Passionately: Twitter Users, Context
Collapse, and the Imagined Audience’ [2011] New Media & Society, 114, 122. Facebook and
Google+ allow users to define their audiences through users setting up group/circles.
84 Soukop, above n 82.
Chapter 2 User autonomy in online boundary management 51
stressful demands of work and home life and provides the feeling of inclusiveness and
belonging associated with participating in a group’s social activities. More
importantly, third places are an accessible social public space where individuals
appropriate the space as their own. In these spaces, an ‘individual’s conversation is
uninhibited, invites emotional expression and is democratic.’85 What is distinct about
third places is that they are located centrally within a single culture or community and
with interaction existing within a geographic location.86 Third places are distinct from
informal public spaces at work where employees typically gather to talk about issues
related to work. For example, employees often vent and express their feelings to other
co-workers about work-related issues around the office water cooler or in restrooms.87
Whilst these spaces are at work and do not fit within the meaning of third places –
being places of neither work nor home – what is common in both physical spaces are
that employees can express their personal view to their chosen audience. In other
words, individuals have control over with whom and what they wish to communicate.
Individuals can maintain control through defined boundaries, such as walls between
two rooms, or mental fences that people construct to organise a sense of social norms
based around where they are, with whom they are communicating to, and in what
social role. An individual performs a role that is suited to the accepted norms of their
intended audience.
Within physical spaces, individuals perform a version of themselves that is
reliant upon how they wish their audiences to perceive them. Individuals play multiple
roles that create their sense of self. In the physical space, individuals control others
perceptions of them through ‘performances within defined social establishments that
allow an individual's presentation of self to occur in the context of a group.’88
Individuals create these performances and tailor their social identities for particular
audiences; that is, an individual ensures that ‘those before whom he plays one of his
85 Ramon Oldenburg and Dennis Brissett, ‘The Third Place’ (1982) 5(4) Qualitative Sociology 265,
272.
86 Soukup, above n 82, 432.
87 Jeffrey A. Mello, ‘Social Media, Employee Privacy and Concerted Activity: Brave New World or
Big Brother?’ (2012) 63(3) Labor Law Journal 164, 169.
88 Erving Goffman, The Presentation Of Self In Everyday Life (Anchor, 1959) 49.
52 Chapter 2 User autonomy in online boundary management
parts will not be the same individual before whom he plays a different part in another
setting.’89 The process of ‘impression management’ is where individuals habitually
monitor how people respond to them when presenting themselves.90 An individual can
choose many different self-presentation strategies. For example, how one performs in
a social setting of work colleagues may be different to how one performs in front of
friends or family. Where the audience are work colleagues, one would likely present a
more professional persona; whereas in the company of family and friends, one might
adopt an ‘authentic self’ which is a social construct.91 The physical or mental
boundaries that exist in physical spaces assist individuals in how they present different
versions of themselves and organise and segment their audiences.
2.2.1 Boundary management in physical spaces
Users have traditionally undertaken boundary management techniques to control
role identity in navigating their work and private lives. These practices have evolved
and expanded from the physical space to the digital space of social media but in new
and different ways. In the physical space, the relationship an employee has with their
work and non-work spheres, such as private and family life, are integrated and do not
exist in two separate domains. Work and private domains interact and are ‘dynamic in
nature.’92 Since the Industrial Revolution, where work and family activities were
89 Ibid.
90 Marwick and boyd, above n 83, 122.
91 Alice Marwick, Status Update:Celebrity, Publicity and Branding in the Social Media Age (Yale
University Press, 2013) 198. Marwick explains how people have been fired from their jobs for their
authentic actions in broadcasting their activities on social media such as drinking alcohol, taking drugs
or talking about politics where these actions do not fit a ‘businesslike’ image.
92 Rhemus Ilies et al., ‘When can Employees have a Family Life? The Effects of Daily Workload and
Effect on Work-Family Conflict and Social Behaviours at Home’ (2007) 92(5) Journal of Applied
Psychology 1368, 1369; Ann Tenbrunsel, ‘Dynamic and Static Work-Family Relationships’ (1995)
63(3) Organisational Behaviour and Human Decision Processes 233, 234; Kevin Williams and
George Alliger, ‘Role Stressors, Mood Spillover, and Perceptions of Work-Family Conflict in
Employed Parents’ (1994) 37(4) Academy of Management Journal 837, 838.
Chapter 2 User autonomy in online boundary management 53
carried out in different places, at different times, with different sets of people,93 work
has evolved into an ‘open-systems approach’ that assumes events at work affected
events at home and vice versa.94 The overlap of these domains highlights further
concerns for a user’s ability in branding a purely professional or business self on social
media, especially where divisions between corporate life and social life are a myth:
one cannot logically exist if they are to present as entirely transparent and entirely
business-oriented.95 Spillover and compensation theories explain the ways in which
emotions carry over into each domain.
Spillover theory suggests that in spite of physical and temporal boundaries
between work and family, emotions and behaviours in one sphere can carry over to
another.96 Complementing spillover theory is compensation theory that proposes an
inverse relationship exists between work and family such that people make differing
investments in each to make up for what is missing in the other.97 Staines’ theory
supports the notion that work and family life influence each other so employers,
societies and individuals cannot ignore one sphere without potential peril to the other.98
These theories have a limited focus in that they address only emotional linkages and
fail to acknowledge the ‘spatial, temporal, social and behavioural connections between
work and family’99 that are important in its application to social media. Clark proposed
that the ‘work/family border theory’ depicts a more flexible boundary where
individuals have greater control over how they manage their work and non-work
lives.100 Central to this theory is the idea that ‘work’ and ‘family’ constitute different
93 Sue Campbell Clark, ‘Work/Family Border Theory: A New Theory of Work/Family Balance’
(2000) 53(6) Human Relations 747, 748.
94 Ibid 749.
95 Marwick, above n 91, 199. Marwick acknowledged that blending the two required a great deal of
effort.
96 Graham L Staines, ‘Spillover versus Compensation: A Review of the Literature on the Relationship
between Work and Non-Work’ (1980) 33(2) Human Relations 111,112.
97 Ibid.
98 Campbell Clark, above n 93, 749.
99 Ibid 750.
100 Ibid.
54 Chapter 2 User autonomy in online boundary management
domains that influence each other.101 However Ashforth et al.’s boundary theory102
goes a step further to include role transitions between work, home and other social
domains, such as third places.
2.2.2 Segmentation and integration of audiences
Individuals structure and separate the various roles an individual maintains in
different domains. Ashforth et al. consider that individuals classify some of their role
activities and experiences as related to the ‘work’ domain, ‘family’ domain or ‘third
places, such as church or neighbourhood bars or health centres.103 Olson-Buchanan
contends that boundary theory suggests individuals vary in the extent to which their
various roles integrate or segment across various domains.104 Boundary work is the
practice whereby users segment or integrate audiences to build and maintain the
boundaries between the different domains in their lives.105 Individuals undertake this
process according to their various roles to determine which activities to integrate and
which to segregate between the domains.106 For instance, an individual might integrate
their home and social domains because their roles in these domains may not change or
there is a high degree of spillover across these contexts. While some individuals might
maintain highly separate or segmented work, home and social lives with little spillover
between the two domains – for example, turning their mobile phone off after work so
as not to receive any work-related calls – others operate in a highly integrated way
whereby the experiences and events of one domain may frequently affect or disrupt
the other.107 Users integrating various roles from different domains make it more
difficult for them to prioritise roles, as contexts change because of changing demands
101 Ibid 751.
102 Ashforth et al., above n 77, 473.
103 Ibid.
104 Julie Olson-Buchanan and Wendy Boswell, ‘Blurring Boundaries: Correlates of Integration and
Segmentation between Work and Non-work’ (2006) 68(3) Journal of Vocational Behavior 432, 433.
105 Nippert-Eng, above n 76, 5-6.
106 Ibid.
107 Ibid 6.
Chapter 2 User autonomy in online boundary management 55
and the impact of technology in complicating the boundary work process.108 Where
work intersects with all aspects of life, employees may find it difficult to separate their
identity as employee from that of father or husband or friend. Workplace demands and
the intrusive nature of technology also contribute to increased difficulty for employees
to create functional boundaries that separate their various domains.109 For example,
some employees with access to technology frequently choose work as they struggle to
negotiate their work and family role expectations;110while in other cases,
organisational demands compel them to stay connected.111 The concepts of one’s
boundary flexibility and permeability can determine the strength of one’s control over
work-life integration/segmentation processes.
2.2.3 Permeability and flexibility of domain boundaries
An individual’s level of permeability and flexibility determines the strength of
their boundaries that surround their work and non-work domains. Permeability is the
degree to which ‘elements from other domains may enter’, while flexibility is ‘the
extent to which a boundary may contract or expand depending on the demands of one
domain or the other.’112 The literature suggests that permeability leads to role blurring
that potentially increases inter-role conflict because individuals are attending to two
domains with their separate norms and expectations simultaneously.113 The impact for
users is that activities associated with work and non-work roles may become blurred
as role identities overlap due to the shared location and frequency of transitions.114
108 Kristopher J Thomas, ‘Workplace Technology and the Creation of Boundaries The Role of VHRD
in a 24/7 Work Environment’ [2014] Advances in Developing Human Resources 5.
109 Ibid.
110 Joseph G Grzywacz and Dawn S Carlson, ‘Conceptualizing Work—Family Balance: Implications
for Practice and Research’ (2007) 9(4) Advances in Developing Human Resources 455.
111 Thomas, above n 108.
112 Douglas Hall and Judith Richter, ‘Balancing Work Life and Home Life: What Can Organizations
Do to Help?’ (1988) 2(3) Academy of Management Executive 213, 215.
113 Ibid 217.
114 Ashforth et al., above n 77, 484.
56 Chapter 2 User autonomy in online boundary management
The second boundary concept that dictates boundary strength is flexibility. The
extent of employer control over their employees can dictate an employee’s boundary
flexibility. Boundary flexibility is conceptualised in terms of two components. First,
flexibility-ability is the perceived ability to contract or expand domain boundaries so
that one is able to change the boundaries of one domain to meet the needs of another.
Second, flexibility-willingness is the willingness to contract or expand domain
boundaries to meet the needs of the other.115 Essentially, the flexibility-ability
component reflects perceived constraints on the ability to move from one domain to
another. Organisational needs and demands or an employee’s needs and preferences
can determine an individual’s boundary flexibility. Clark116 concludes that boundaries
will be stronger in the direction of the more powerful domain with the weaker in the
direction of the less powerful domain. She further postulates that work domain
interests may not be the same as employee interests and this makes achieving balance
in the work-life relationship particularly difficult.117 Dominant work interests are
comparable to flexible work options where organisations create flexible work practices
to serve their own interests and not necessarily employee or family interests.118 Whilst
there is support that organisations can impose some restrictions on a user’s boundary
permeability,119 having employer control over an employee’s work can adversely
affect an individual’s ability to control when, where, and how they work. To avoid
conflict, employees can choose to manage their boundaries through the adoption of
boundary management strategies to effectively – but not completely – separate work
and personal domains.
2.2.4 Organisational impacts on boundary management
The way in which users manage the boundaries of their various domains relies
on individual differences in boundary control and role construction and the extent to
115 Russell Matthews, Janet Barnes-Farrell and Carrie Bulger, ‘Advancing Measurement of Work and
Family Domain Boundary Characteristics’ 77(3) Journal of Vocational Behavior 447, 448.
116 Campbell Clark, above n 93, 758.
117 Ibid.
118 Ibid 765. Note that there often reciprocal trade-offs.
119 Olson-Buchanan and Boswell, above n 104.
Chapter 2 User autonomy in online boundary management 57
which organisations have control over these roles. As foreshadowed in user boundary
flexibility, organisational climate can influence the amount of flexibility an individual
has in making boundary management choices.120 Whoever has greater control over
employees’ boundaries commands the management of the employee’s boundaries.
Employee boundaries underpin a user’s role centrality, cross-role interruptions, and
boundary control.121 Boundaries may be asymmetrical in the sense that one domain
may enter another, but not necessarily the reverse.122 Organisational control over
employee boundary permeability is reliant upon that organisation’s culture and the
extent to which the organisation supports individual choices for boundary
management.123 Individuals can manage their boundaries in line with their personal
values, preferences and needs provided their organisations are supportive of their
employees’ work-life boundary management choices. One way an employee could
verify their organisation’s support is by employing communicative tactics.
An alignment between employee and organisational values or preferences can
avoid conflict in the ways in which employees manage their boundaries.
Communicative tactics is a way in which stakeholders can set expectations and
confront boundary violators.124 A ‘give and take’ process of boundary construction
and maintenance occurs between the individual and the organisation.125 Organisations
that expect employees to adapt to their standards of boundary management will likely
lead to conformity among employees because the demands of the organisation dictate
120 Ellen Kossek and Brenda Lautsch, ‘Work-Family Boundary Management Styles in Organizations:
A Cross-Level Model’ (2012) 2(2) Organizational Psychology Review 152, 164.
121 Kossek et al., above n 78, 122 where an empirical study was undertaken which revealed four
categories of users with high boundary control were: Family Guardians, Fusion Lovers, Dividers and
Non-work – eclectics and one with low boundary control referred to as ‘Work Warriors’.
122 Ibid 112.
123 Kossek and Lautsch, above n 120, 164.
124 Glen Kreiner, Elaine Hollensbe and Matthew Sheep, ‘Balancing Borders and Bridges: Negotiating
the Work-Home Interface via Boundary Work Tactics’ (2009) 52(4) Academy of Management Journal
704, 722.
125 Ibid 723.Communicative tactics of setting standards of behaviour align with the Corporate Social
Responsibility communicative tenet of dialogic engagement discussed later in Chapter Six.
58 Chapter 2 User autonomy in online boundary management
a specific standard to follow and offer little room for customisation.126 According to
Blackford, these standards are problematic as employers are becoming the ‘enforcers
of social conformity’ in setting their own standards127 which raises questions as to how
far employers can control employees’ management over their social domains that
extend beyond the firm’s goods and services.
On the other hand, individual employees who have high control over their
boundaries perceive they have control over the timing, direction, and frequency of
boundary domain crossing to fit their identities and multiple role demands.128 The
extent to which individuals identify themselves determines role centrality. Some users
have work-centric role identities, while others have family-centric identities, and
others operate within dual-centric role identities by investing in each role.129 The
extent to which individuals allow interruptions will be influenced by their preferences
for integration or segmentation of role responsibilities. This has relevance in a social
media environment where the blurring of both professional and personal is more
prominent than in the physical space.
Employees use various social media platforms to connect with work and family
but, unlike connections in the physical space, digital platforms accelerate the blurring
of work and personal domains. Kossek and Lautsch contend that employee use of
technology inherently creates blurring of boundaries between work and home.130 This
is because there are four types of tactics that individuals use to manage the boundaries
between their home and work environments: physical, behavioural, temporal, and
communicative strategies.131 A study analysed the varied reactions of users to mobile
126 Kossek and Lautsch, above n 120, 159.
127 Russell Blackford, ‘Master and Servants’ (2014) (May-June) New Philosopher 53, 55.
128 Kossek et al., above n 78, 114.
129 Ibid.
130 Kossek and Lautsch, above n 120, 153.
131 Campbell Clark, above n 93, 749. See also Glen Kreiner, Elaine Hollensbe and Matthew Sheep,
‘Balancing Borders and Bridges: Negotiating the Work-Home Interface via Boundary Work Tactics’
(2009) 52(4) Academy of Management Journal 704, 722; Christena Nippert-Eng, ‘Calendars and
Keys: The Classification of “Home” and “Work”’ (1996) 11(3) Sociological Forum 563, 568.
Chapter 2 User autonomy in online boundary management 59
devices, such as Blackberries and iPhones. 132 Their research revealed that users had
different perceptions of the benefits and drawbacks of using these devices based on:
with whom they connected with, how many individuals they connected with using the
device, and why they initially wanted the device.133 Their findings indicated that
workers appreciated the work benefits, however, reported the pressure to be responsive
and accessible frequently interfered with their personal lives with some struggling to
set boundaries.134 Employee use of mobile devices and the corresponding change in
the nature of work affects how their time is spent doing work; consequently, this
affects how individuals make choices about temporal tactics surrounding work.
Employees can still manage these temporal tactics by adopting similar strategies that
are suited for the social media space.
2.3 User Interactions on Social Media
Individuals face important new challenges in controlling their identities and
audiences in the online environment. The way in which people communicate and
interact with one another in the offline physical space is vastly different from
conversations taking place online due to the unique affordances and the architecture
of social media platforms. Popular social media platforms such as Facebook, Twitter,
Instagram, Snapchat have been embraced by hundreds of millions of users worldwide
who now use and rely on the technology as a mainstream communication tool. Social
media enables ‘users to become the producers and stars of their productions as they
create their own profiles and observe those of others’.135 Users connect and write for
an audience as well as engage in social interaction. The platform one chooses to engage
a specific audience depends upon the social nature of the platform. With over 1.3
billion users, Facebook is the largest platform for connecting and socialising with
132 Sharon Matusik and Amy Mickel, ‘Embracing or Embattled by Converged Mobile Devices? Users’
Experiences with a Contemporary Connectivity Technology’ (2011) 64(8) Human Relations 1001.
133 Ibid 1017.
134 Ibid 1015.
135 Brian Miller and Peter Mundey, ‘Follow the rules and no one will get hurt: performing boundary
work to avoid negative interactions when using social network sites’ [2014] Information,
Communication and Society 187, 188.
60 Chapter 2 User autonomy in online boundary management
family, friends and acquaintances.136 Other platforms have different audiences and
purposes for which users choose to interact with that audience. For example, platforms
such as Tinder, Grindr and RSVP are dating sites that connect users who may be
compatible. Irrespective of the uses of these platforms, the ways in which the platforms
allow people to connect differ from connections in the physical space.
2.3.1 The architecture of networked publics
Unlike user presentations of self in the physical space, unique affordances and
dynamics of a networked public space on social media can help or hinder users’
presentation of self. Networked publics are publics that are ‘restructured by networked
technologies and the imagined community that emerges as a result of the social
interaction of people, technology and practice.’137 Networked publics have both
enabling and constraining effects on users’ due to their 'affordances'.138 These
affordances develop from both the architecture of the Social Networking Sites (SNSs)
and the networked environment within which SNSs exist. Affordances constitute the
‘relationship between the technical features of social media and the people who
perceive and use them.’139 boyd has identified four social media affordances that shape
networked publics created on social media. Whilst these affordances are not new, their
relation to one another because of networked publics creates new challenges for users.
The architectural affordances can be summarised as follows: Visibility is the
potentially broad audience who can view networked communications while
Persistence refers to online expressions that are ‘on the record’; Spreadability is the
ease of sharing content while Searchability is the ease of finding content.140 Further to
136 ‘Facebook Investor Relations’, Facebook (8 February 2015)
<http://investor.fb.com/releasedetail.cfm?ReleaseID=893395>.
137 danah boyd, It’s Complicated: The Social Lives of Networked Teens (Yale University Press, 2014)
10.
138 danah boyd, 'Social network sites as networked publics: affordances, dynamics, and implications',
in Zizi Papacharissi, A Networked Self: Identity, Community, and Culture on Social Network Sites
(Routledge, 2011) 39-58.
139 Vaast and Kaganer, above n 80.
140 boyd, above n 137, 11-12.
Chapter 2 User autonomy in online boundary management 61
these technical affordances, organisational literature describes two additional social
media affordances: Editability and Association.141 These new affordances are
particularly concerning for users as they affect how users might manage their
professional and personal online identities.
Organisational affordances have the capacity to integrate the relationship
between social media technology, the employee user, and the employer. The
affordance of Editability makes it possible for social media users to amend, revise and
change collaborative content published on the internet.142 For example on Facebook,
users can edit a post but the platform also ensures the edit history is visible to other
users. The affordance of Association creates relationships between individuals,
commonly known as a ‘social tie’, and links individuals and content such as ‘liking,
commenting or sharing an article.’143
Networked publics can be advantageous for users and, at the same time, be
harmful for user’s personal autonomy. Users can benefit from social media affordances
that can enhance one’s social capital. Social capital is an investment in social relations
through which one gains access to embedded resources to enhance expected returns.144
Networked platforms help individuals create and maintain social capital because the
technical and social affordances of social media enable users to develop norms of
trust145 and reciprocity in interactions within a larger network of social connections.146
However, users interacting within networked publics are disadvantaged in different
ways when compared to their physical interactions.
141 Vaast and Kaganer, above n 80.
142 Ibid. Wiki’s are another example whereby users can see the edit history.
143 Jeffrey Treem and Paul Leonardi, ‘Social Media Use in Organizations: Exploring the Affordances
of Visibility, Editability, Persistence and Association’ [2012] Communication Yearbook 143, 162.
144 Nan Lin, ‘Building a Network Theory of Social Capital’ (1999) 22(1) Connections 28, 39.
145 Sebastian Valenzuela, Namsu Park and Kerk Kee, ‘Is There Social Capital in a Social Network
Site?: Facebook Use and College Students’ Life Satisfaction, Trust, and Participation’ (2009) 14(4)
Journal of Computer-Mediated Communication 875, 877.
146 Charles Steinfield, Nicole Ellison and Cliff Lampe, ‘Social Capital, Self-Esteem, and Use of
Online Social Network Sites: A Longitudinal Analysis’ (2008) 29(6) Journal of Applied
Developmental Psychology 434, 437.
62 Chapter 2 User autonomy in online boundary management
What is different about individuals communicating via social media as opposed
to a physical third place is that one’s social connection now exists in networked publics
where people freely engage with one another and are part of a much broader
community. The dynamics of networked publics, including the invisibility of
audiences, the collapsibility of contexts, and the blurring of public and private,147 can
sometimes be incompatible with what we understand about the physical third place.
Unlike the physical space, social media communications ‘transcends space, time and
geographic space’148 so users do not necessarily share the same physical space during
the interaction. In other words, in physical third places users can select with whom and
what they wish to communicate, whereas the invisibility of online audiences means
that users cannot be certain who sees their comments, likes, shares or pictures they
post. This is because online users construct an 'imagined audience’ to assess whether
or not they believe their behaviour is socially appropriate, interesting, or relevant.149
2.3.2 Context collapse
Context collapse is a feature of networked publics that is incongruent with our
conceptions of physical third places. The way users interact or perform their identities
online may upset some audience relationships that form part of one’s entire social
network. Identity construction offline is different from identity construction in
networked publics as collapsed contexts created within networked publics have the
capacity to collapse one’s entire social network that affects a user’s self-presentation
and identity management strategies.150 Some social networking platforms – for
example, Facebook or Twitter – tend to flatten network connections and collapse the
contexts of a user's relationships into one field of 'Friends'.151 What this means is that
when users construct the 'imagined audience' of a particular post, they must contend
with it being visible to a number of relationships within one social plane. For example,
147 boyd, above n 138, 49-52.
148 Soukup, above n 82, 433.
149 boyd, above n 138.
150 Marwick and boyd, above n 83.
151 Ibid. Facebook and Google+ allow users to define their audiences through users setting up
groups/circles.
Chapter 2 User autonomy in online boundary management 63
a user broadcasting their personal opinion about a family issue across a range of
different audiences may not be appropriate for work colleagues152or professionals.
Context collapse is also temporal. The affordance of persistence maintains a record of
online expressions such that time is not just about which locations something is visible
at the time of posting, material can be read at a much later time after it was created.
For example, this might be relevant in circumstances where someone writes an
unpleasant post about a company and then some time later, they become an employee
of that firm. The persistence feature of platforms can resurrect the employee’s past
comment in ways that can make it more visible to new audiences and potentially
exposes the employee to greater employer scrutiny. While individuals can segment
and manage their content to suit the norms of their particular audience, this process
requires individuals to customise conversations to ensure there is no mismatch
between their personal views and professional life.
2.3.3 User control is diminished in collapsed contexts
A lack of platform privacy settings can reduce the amount of control users have
over their different identities in online social networks. The third dynamic of
networked publics – and most relevant to private/professional boundary management
strategies – is the blurred boundary conceptions of what constitutes private and public
online.153 In physical environments, individuals make use of physical boundaries to
control audiences; however, in digital environments, walls, doors, and other
boundaries have changed. The absence of physical boundaries in the digital
environment makes it more difficult for users to define their personal from their
professional lives. For example, Facebook complicates the nature of a binary
public/private divide because the platform occupies a ‘continuum of publicness.’154
What this means is that users face challenges in deciding for themselves how to
152 O’Keefe v William Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311.
153 boyd, above n 138, 51-52.
154 Ibid. See also Daniel Trotter, Social Media as Surveillance: Rethinking Visibility in a Converging
World (Ashgate, 2012) 167.
64 Chapter 2 User autonomy in online boundary management
approach this dilemma of ‘publicness’ – a new dilemma that typically did not arise in
physical interactions.
Privacy settings alone cannot address the impact of context collapse in
networked audiences. Individuals self-present across flattened audiences that makes it
difficult to segment content to different audiences.155 Although privacy settings form
part of a platform’s architecture, a user’s inability to understand their interactions with
online audiences has resulted in tarnished reputations and lost jobs. Platforms offer
little assistance for users in managing their identity and relationships, particularly
when there is frequent variation in settings and the rate at which these policies
change.156 While individuals often perceive their personal pages as private, the reality
is that user privacy settings cannot guarantee the privacy of personal
communications.157 Users’ personal information can become accessible to their
employer and wider audiences that can have far-reaching effects on personal privacy,
self-expression and reputation.158
A lack of user control over their own privacy settings can conflate user identities
within these spaces. One key reason is that social media platforms have strong
incentives to reduce user privacy, rather than increase it. This is because most social
networking platforms commodify user personal information that is on-sold to third
parties, such as advertisers, app providers and recruiters.159 The user pays for social
networking services by exchanging their personal information that platforms primarily
use for commercial purposes. Trading user information in this way allows platforms
to utilise sophisticated software that scans and merges users’ various identities to
inform third parties of a whole user picture. Platforms can generate reports from
155 Jessica Vitak, ‘The Impact of Context Collapse and Privacy on Social Network Site Disclosures’
(2012) 56(4) Journal of Broadcasting & Electronic Media 451, 452.
156 ‘Facebook Graph Search’, Facebook (16 February 2015) <http://search.fb.com/.> Facebook’s
Graph search function circumvented to some extent, Facebook’s privacy settings.
157 Clarke, above n 14, 105 where an employee’s racist comments or inappropriate Facebook jokes can
affect business reputation.
158 Sánchez Abril et al., above n 15, 64.
159 Rolf H Weber, ‘The Digital Future – A Challenge for Privacy?’ (2015) 31(2) Computer Law &
Security Review 234, 236.
Chapter 2 User autonomy in online boundary management 65
personal information gleaned from social networking sites and various other online
accounts that inform third parties decision-making process.160
Users develop their own online privacy rules and strategies regarding with whom
they choose to connect. Users undertake these strategies with a view to limit their own
self-monitoring and regulating their own behaviour.161 Some users simply appear
unconcerned about the repercussions of their social media comments,162 some are more
likely to self-censor comments that can affect employment opportunities, whilst other
users clearly delineate between work and personal comments. In the context of this
thesis, privacy in networked contexts is more concerned with an employee’s personal
autonomy interests and the extent to which employers’ rules might impede employee
interactions. Platform rules or terms of use can also restrict user autonomy in important
ways.
2.3.4 The networked self
Platforms that impose strict or broad rules in terms of their users’ identity
performance can harm users. People use networked platforms to ‘share aspects of
themselves with their networks’ and ‘these expressions can simultaneously express
uniqueness and connection to others.’163 Social media provides the space where users
can negotiate their online identity through the people with whom they choose to
connect, the pictures of themselves and friends that appear on their profiles, and
through interactions with other users.164 Some social media platforms impose
restrictions on user identity, yet others encourage and support user identity preference.
For example, users generally know the relationships formed on public or closed
Facebook groups because ‘most relationships have already been established offline as
160 Ibid 237.
161 Stephen Owen, Governing the Facebook Self: Social Network Sites and Neoliberal Subjects
(University of Newcastle, 2014) 167.
162 Ibid 136.
163 Andrew Mendelson and Zizi Papacharissi, ‘Look at Us: Collective Narcissism in
College Student Facebook Photo Galleries’in Zizi Papacharissi, A Networked Self: Identity,
Community, and Culture on Social Network Sites (Routledge, 2011) 251.
164 Ibid 260.
66 Chapter 2 User autonomy in online boundary management
family, neighbours, colleagues and other acquaintances.’165 Facebook is a space that
compels users to recreate their offline personal and social lives in the digital space to
ensure that the digital portrayal is somewhat ‘reminiscent of the offline self.’166 The
problem with Facebook’s rules is that it encourages users to create only one true
‘authentic’ self to the detriment of all other user identities. This contrasts with the
anonymous or pseudonymous self in other platforms such as Ello, Whisper, or Secret,
or avatars created in identity play through online gaming whereby a user can present
an identity or maintain a character in any way they choose. Users constructing an
online profile are ‘writing oneself into being’ and the ability to construct any online
identity is accepted within social media research as being significantly impacted upon
by social dynamics and personality traits.167 Social media allows users to construct an
identity in ways that are deeply rooted in the contemporary idea that the ‘self is
autonomous and constantly improving.’168 But platforms such as Facebook
systematically discourages user self-presentation by linking a single – presumably
authentic – self to a body of verifiable information that is a ‘persistent identity.’169
Whilst Facebook encourages a single self that can often mirror an offline authentic
self,170 the specific Twitter affordance offers user accounts that may not directly and
uniquely link to a single individual. Users may have multiple Twitter accounts,
including anonymous and pseudonymous accounts where they can promote various
presentations of self. There are no guarantees that users’ real identities will not be
disclosed by others or by third parties.
165 Shanyang Zhao, Sherri Grasmuck and Jason Martin, ‘Identity Construction on Facebook: Digital
Empowerment in Anchored Relationships’ (2008) 24(5) Computers in Human Behavior 1816, 1818.
166 danah boyd and Nicole Ellison, ‘Social Network Sites: Definition, History, and Scholarship’
(2007) 13(1) Journal of Computer-Mediated Communication 210, article 11.
167 danah boyd, ‘None of this is Real: Identity and Participation in Friendster’ in Joe Karaganis et al,
Structures of Participation in Digital Culture (SSRC, 2007) 132,133.
168 Marwick, above n 91, 192.
169 Ibid 19.
170 ‘Statement of Rights & Responsibilities’ Registration and Account Security, Facebook (2
February, 2015) <https://www.facebook.com/notes/facebook-site-governance/statement-of-rights-and-
responsibilities/183538190300> where user’s must use real name and not provide false personal
information.
Chapter 2 User autonomy in online boundary management 67
There are inherent risks associated with users who choose to use a
pseudonymous account as a way in which to protect their real identity. It only takes
one link, or one person to connect a ‘real’ identity and a pseudonymous account such
that the separation of these identities is often temporary, fragile and easily undone. A
colleague or friend making a comment or post linking a ‘real identity’ and a
pseudonymous account can completely erase the boundary between the two. The
searchability affordances of platforms can reveal the real identities of users who would
otherwise prefer to remain anonymous. For example, a friend might upload a photo to
Facebook and ‘tag’ another friend at a party where that friend may not want to share
that photo, for whatever reason, with their audience. Content is disclosable through
search functions and the operation of the tag automatically appears on that friend’s
Facebook page which can persist for several weeks before the friend notices, during
which time, the employer has viewed the photo and is considering its options in terms
of any business harm or potential breach of that employee’s obligations. Third party
platforms can also collapse user boundaries in ways that can reveal a user’s real
identity. For example, to purge trolls and scammers from YouTube’s comments
sections, Google introduced a policy where all YouTube comments were linked to the
commenter’s Google+ profile. As the comments were linked to the profile, the
commenter had to use their real name. Nine months later, Google+ withdrew account
naming restrictions and allowed users to identify themselves with any name of their
choosing.171 While Facebook and Google have relaxed their policies on ‘real name’
accounts, the posting activity of friends and colleagues in collapsed contexts can
potentially compromise users’ efforts to conceal their real identity unless users actively
monitor and censor their page notifications (for example,’ untagging’ photos) to avoid
detection. Users combining their various identities have their own set of challenges in
collapsed contexts.
A user who chooses to combine their identities on a single account can blur one’s
personal and professional boundaries. Persona plays an important role for individuals
who wish to maintain their good reputation, trustworthiness and authenticity. Persona
171Caitlin Dewey,‘Even Google has abandoned its fight against the trolls’ The Washington Post
(16 July 2014) https://www.washingtonpost.com/news/the-intersect/wp/2014/07/16/even-google-has-
abandoned-its-fight-against-the-trolls/?tid=a_inl&utm_term=.a66476a14847.
68 Chapter 2 User autonomy in online boundary management
is a ‘mask of identity, a raw version of ourselves, or thought of as a form of ‘role-
playing’ and ‘impression management’.’172 Persona is something with agency,
strategic and essential to the modern experience, as the individual both constructs and
inhabits these public identity formations.173 Individuals create a self-conscious persona
that makes the world think they are entrepreneurial, but people must undertake
considerable work to maintain an ‘edited self.’174 A user maintaining and managing
these identities requires considerable skill. Kelly describes that engaging in the self as
enterprise is cultivated by ‘21st Century flexible capitalism’ where one embraces a set
of normative terms that positions the self as autonomous and risk aware.175 The self as
enterprise needs to have a well-regulated autonomy176 and to exercise their persona in
how they wish audiences to perceive them. The problem for users is that self-branding
in this way contains a paradox of being both authentic and businesslike177 that is akin
to a blending of the personal and professional. Role blurring potentially increases inter-
role conflict because individuals are attending to two domains with their separate
norms and expectations simultaneously.178 The presentation of an authentic true self
may not be acceptable as a business or professional self because acceptable behaviour
in a social setting is different from behavioural norms at work.
2.4 Disciplinary Action for Online Behaviour
An employer can instigate disciplinary action against an employee if the
employer establishes that an employee’s questionable online post has a connection
with work. In the context of a user as an employee, an employee is entitled to a private
172 Kim Barbour, David Marshall and Christopher Moore, ‘Persona to Persona Studies’ (2014) 17.3
(June) M/C Journal <http://journal.mediaculture.org.au/index.php/mcjournal/article/view/841.>
173 Ibid.
174 Marwick, above n 91, 195.
175 Peter Kelly, The Self as Enterprise: Foucault and the Spirit of 21st Century Capitalism (Gower
Publishing Ltd, 2013) 14.
176 Ibid.
177 Marwick, above n 91, 199.
178 Hall and Richter, above n 112, 217.
Chapter 2 User autonomy in online boundary management 69
life. At law, an employer will infringe this right in exceptional circumstances.179
However, networked affordances of visibility, persistence, spreadability, searchability,
combined with the organisational affordance of association that I described earlier,
facilitates a greater connection between an employee’s online communication and their
work that is different from the physical space. These platform affordances make it
easier for employers to monitor their employees’ personal opinions, views and
interactions in ways that personal interaction in the physical space does not.
In most cases, an employee’s privacy settings on their personal accounts will not
provide legal protection against their employers.180 The national employment
regulatory body, Fair Work Australia,181 has affirmed that despite an employee’s
private life outside of work, employees cannot claim social media posts are intended
for ‘private consumption’182and disclosing opinions online is disclosing to the ‘world
at large.’183 For example, in Little v Credit Corp184 the decision concerned the
dismissal of an employee for the inappropriate use of his personal Facebook account
(using the pseudonym ‘Dinosaur Wrangler’) to criticise an organisation with which his
employer had professional dealings as well as making sexually suggestive comments
about a new company employee. Other personal information displayed on his
‘Dinosaur Wrangler’ profile identified him as an employee of the firm. The employer
terminated the employee’s contract after his posts came to the attention of management
that could damage the firm’s interests. The Fair Work Commission ruled the dismissal
had been fair and pointed to relevant factors including that it was irrelevant that Little
believed his Facebook page was ‘private’, that he did not understand how Facebook
179 Rose v Telstra [1998] AIRC 1592, out of hours conduct is likely to cause serious damage to the
relationship, damages the employer’s interests or incompatible with the employee’s duty as an
employee.
180 Howard, above n 10, 34.
181 Fair Work Act 2009 (Cth) s 4 provides for the administration of this Act by establishing the Fair
Work Commission and the Office of the Fair Work Ombudsman.
182 Pearson v Linfox Australia Pty Ltd [2014] FWC 446, [46].
183 Little v Credit Corp Group Limited T/A Credit Corp Group [2013] FWC 9642, [74]. But see for
example in Fallens v Serco Australia Pty Ltd t/a Serco Acacia Prison [2015] FWC 8394 which
indicates a shift in this approach where in some cases, employees can expect privacy on social media.
184 Little v Credit Corp Group Limited T/A Credit Corp Group [2013] FWC 9642.
70 Chapter 2 User autonomy in online boundary management
worked and it was his responsibility to change the privacy settings for his account.185
The Commission found that while the applicant was perfectly entitled to have his
personal opinions, he is not entitled to disclose them to the world ‘at large’ where to
do so would reflect poorly on the Company and/or damage its reputation.186
While courts will consider the context of personal social media
communications187 on an individual basis, employees will need to exercise caution as
a pseudonym disguising an employee’s real identity will not protect them from
disciplinary action, particularly if the interaction in question likely harms business
interests. The Commission’s declaration of ‘publicness’ of employee communications
in online contexts means that users are required to undertake strategies in keeping their
personal life separate from work and to ensure their interactions do not harm business
interests. The research will show how some employer practices that control employee
interactions enhances the degree of difficulty for users to separate personal and work
domains. One way users can manage their identities and lessen their exposure to
employment conflict is to try and separate these domains through online boundary
management strategies.
2.4.1 Why users may manage personal and professional audiences
Despite the difficulties in users controlling their online audience and maintaining
their identities in collapsed contexts, users actually have a higher degree of autonomy
in how they might manage their personal and professional audiences as opposed to
audience management in physical spaces. Users maintain online boundaries between
their private and work life for a variety of reasons. Examples include:
a. A user omits details of their work on personal social media
profiles so that colleagues or clients will find it difficult to
connect with them on Facebook;
185 Ibid [73].
186 Ibid [74].
187 Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota [2014] FWC 644 where the applicant’s
dismissal was harsh, unjust and unreasonable in relation to private messages on her Facebook page
that was intended for private messaging between recipients and not for general audience publication.
Chapter 2 User autonomy in online boundary management 71
b. A user’s personally-held values often conflict with their work
values and work identity;
c. A user views Facebook as a buffer between their working space
during the day and their personal space in private life;
d. A user considers Facebook a third place to unwind with
friends.188
One way users strive to keep personal life separate from working life on social
media is by segmenting their audiences.189 The audience segregation that characterizes
distinctive social identities is especially important for professionalism that demands
audience segregation between the employee’s professional and private personas.190
Users can manage their audiences in a way that may avoid conflict within their
workplace.
2.5 Online Boundary Management
This section explains how online boundary management principles can provide
a guide for a subset of users who may wish to actively manage their online identities.
Then, in Chapter 4 I apply the same principles to explain why some employer practices
that can lead to further context collapse are dangerous for personal autonomy interests.
Online boundary theory provides a theoretical framework that identifies a relationship
between a user’s ability to make sound choices in how they segment or integrate their
online audiences, how organisations might affect those choices, and the consequences
of how an audience perceives the user. The research draws upon an assemblage of
boundary theorists’ views to underscore that a user’s autonomy has consistently been
at the core of boundary management. Boundary management principles have been
articulated in three conceptions of boundary theory: Ashforth et al.’s boundary
segmentation and integration process,191 Kossek et al. and Olsen’s organisational
impact on flexibility of boundary management, and Ollier-Malaterre et al.’s boundary
188 Owen, above n 161, 165-166.
189 Other ways can include the use of pseudonyms or anonymity to disguise an individual’s identity in
online platforms.
190 Sánchez Abril et al., above n 15, 64.
191 Ashforth et al., above n 77.
72 Chapter 2 User autonomy in online boundary management
management and self-evaluations in the public or semi-public social media context.
Figure 2.1 illustrates this relationship whereby organisational control can impact the
way in which a user manages their boundaries within the social media space.
Figure 2.1. Relationship of user boundary management and organisational control on social
media
Employees can undertake similar boundary strategies in the physical space – that
is, managing their domain boundaries through segmentation and integration practices
– on social media. How users might manage their audiences and how the audience
perceives them is different to the physical space. What users disclose online depends
upon whether they choose to present themselves in ways that verify or enhance their
existing self-views. By combining traditional boundary processes of segmentation and
integration with motivational drivers, users have a menu of different boundary
management behaviours that can affect how their professional contacts perceive them.
Online boundary management practices are different from traditional boundary
management in physical spaces due to social media’s public or semi-public nature of
interactions. Online boundary management explains how employees can question with
whom it might be appropriate for them to connect and what information to share —
not only in terms of what they disclose online, but also what others may disclose about
Social Media
Organisational control
Boundary
management
User
Chapter 2 User autonomy in online boundary management 73
them.192 To answer the ‘whom’ and ‘what’ questions, employees perform boundary
work as informed by traditional boundary preferences of segmentation and integration
and identity negotiation informed by self-evaluation motives. The first limb – ‘whom’
– has already been explained in the boundary management literature. What is different
about users managing online boundaries as opposed to traditional boundary strategies
in physical spaces is the way in which audiences perceive users.
The second limb of Ollier-Malaterre et al.’s framework involves evaluations of
the self that concern how individuals want others to perceive them; that is, a personal
or professional version of self. The ‘what’ depends on whether users choose to present
themselves in ways that verify or enhance their existing self-views.
Figure 2.2 shows that online boundary management consists of two limbs:
boundary segmentation or integration, and self-evaluation preferences.
Figure 2.2. Online boundary management components.
Self-evaluation preferences include: a) self-enhancement – presenting one’s self
in a positive and socially desirable manner; and b) self-verification – to behave in a
manner that confirms their own positive and negative self-views.193 In physical
192 Ollier-Malaterre et al., above n 57, 648.
193 Ibid 650.
Boundary segmentation or
integration
Self evaluations
Online boundary management
74 Chapter 2 User autonomy in online boundary management
interactions, people perform identities and role-specific conceptions where they can
choose to self-enhance with professionals, such as supervisors, or to self-verify with
peers. When employees interact online, they often make dominant choices that apply
to broad groups of contacts.194 For example, if a user’s dominant choice is to self-
verify because their connections are mostly their personal contacts – as is the case on
Facebook – then their professional contacts may access the same information,
restricting employees’ ability to self-enhance towards these contacts.195
Users who prefer self-enhancement are more likely to share information that tries
to shape a more positive impression and be more likely to regulate information they
share as well as information disclosed by others about them. In comparison, users who
self-verify may disclose a more diverse array of positive and negative self-relevant
information with the expectation that the audience will give them feedback to confirm
their positive or negative views.196 Online boundary management combines the
traditional boundary processes of segmentation and integration with motivational
drivers that reveal four types of boundary management behaviours. See Figure 2.3.
194 Vitak, above n 155, 465. See also context collapse flattens one’s audience and the process of
performing is complicated by a large and diverse set of friends which makes it more difficult for
individuals to vary self-presentation by audience. Context collapse may be beneficial for users who
want to take advantage of social networks communication features to quickly and easily broadcast
content and interact with a wide range of people.
195 Ollier-Malaterre et al., above n 57, 650.
196 Ibid 651.
Chapter 2 User autonomy in online boundary management 75
Figure 2.3. Online boundary management matrix of behaviours and consequences
The matrix reflects that employees have a menu of different boundary
management behaviours and consequences that can help shape their online
professional identity. These options are the products of users’ preference of either
integration and segmentation of personal and professional boundaries and self-
evaluation motives. The different strategies available to users emphasise that the more
a user can tailor communication to specific audiences, the less risk of offence to that
audience. The Hybrid boundary (Custom) strategy is suited more for professionals in
allowing for richer relationships that go beyond the strictly professional.197 The
disadvantages for professionals in adopting this strategy is the labour involved in
managing both their audience and content on different platforms.198 The alternative
197 Ariane Ollier-Malaterre and Nancy Rothbard, ‘How to Separate the Personal and Professional on
Social Media’ Harvard Business Review (26 March 2015) < https://hbr.org/2015/03/how-to-separate-
the-personal-and-professional-on-social-media.> The authors also describe this a custom strategy
where users set up distinct accounts that can safeguard their professional reputations while still
maintaining an honest Facebook identity.
198 Ibid. See also, time and effort is required to set up different accounts for different audiences on
Google+ or Facebook lists.
76 Chapter 2 User autonomy in online boundary management
Content boundary strategy required fewer boundary management capabilities and
allowed users to connect with a broad audience.199 Whilst this strategy projected
professionalism in what the user posted, a user’s authenticity is questionable due to
their inability to express personal vulnerability. Employees who adopt open boundary
management behaviours can inadvertently lose respect from professional contacts.
This is because employees who reveal too much or post inappropriate personal
information to a broad audience may be inconsistent with the norms of their
professional domains. Professional contacts may perceive these employees as
untrustworthy.200 Whilst networked affordances make it difficult for employees to
control their online communications in collapsed contexts, employees can limit their
employment connection and avoid conflict by understanding the risks involved that
informs their own choices in deciding what social media strategy works best for them.
2.6 Conclusion
A user managing their online audiences is different from how they would
manage their audiences in the physical space. This is largely because networked
publics have unique affordances and collapsing audiences can shape the way in which
users might manage their online identities and audiences. In physical spaces, users
manage their identities through segmenting and integrating audiences based on their
roles in each domain. The extent of an employer’s control over their employees’
boundaries can dictate their employees’ boundary flexibility. In networked contexts,
the platforms themselves present users with unique challenges in the way in which
users might manage their identities.
Identity construction offline is different from identity construction in networked
public spaces as collapsed contexts created within networked publics have the capacity
199 Ibid.
200 Ibid. To illustrate this point, the authors provide the case whereby a young professional was fired
after complaining and publicly ridiculing her boss on Facebook while having him as a contact.
Because of the non-tailored nature of interactions in online social contexts and the potential for others
to comment and provide public feedback, open boundary management behaviours on average,
undermine liking in the eyes of a broad set of professional contacts.
Chapter 2 User autonomy in online boundary management 77
to collapse one’s entire social network.201 Some platforms tend to flatten network
connections and collapse the contexts of a user's relationships into one field of 'Friends'
that can affect a user’s self-presentation and identity management strategies. Another
important feature of networked publics is that they remove privacy barriers, such as
walls, that users traditionally relied upon in physical spaces to control audiences. A
lack of platform privacy settings can reduce user control over their online identities
and can facilitate blurring of users’ boundaries.
Some social media platforms impose restrictions on user identity, yet others
encourage and support user identity preference. For example, platforms such as
Facebook systematically discourage user self-presentation by linking a single,
presumably authentic, self to a body of verifiable information that is a ‘persistent
identity.’202 Whilst Facebook encourages a single self that can often mirror an offline
authentic self,203 the specific Twitter affordance offers user accounts that may not
directly and uniquely link to a single individual. The activity of other users, platform
searchability affordances and third-party interference can sabotage the way in which
users may mask their real identity through their use of pseudonymous accounts. A user
who chooses to adopt self-branding strategies by combining their identities can lead to
role blurring. The impact of this might be that the presentation of an authentic true self
may not be acceptable as a business or professional self because acceptable behaviour
in a social setting is different from behavioural norms at work.
Platform affordances make it easier for employers to monitor their employees’
interactions, which can result in disciplinary actions in ways that personal interaction
in the physical space did not. This is partly because platform affordances forge a
greater connection between a user’s interactions and their work, and current
employment practices are unlike the online space where users have less control over
their communications. Despite the difficulties in users controlling their online
audience and maintaining their chosen identity in collapsed contexts, users may have
201 Marwick and boyd, above n 82.
202 Marwick, above n 90, 192.
203 Facebook, ‘Statement of Rights & Responsibilities’ above n 168. Users must use real name and not
provide false personal information.
78 Chapter 2 User autonomy in online boundary management
a higher degree of autonomy in how they might manage their personal and professional
audiences as opposed to audience management in physical spaces.
Online boundary management practices are different from traditional boundary
management in physical spaces due to social media’s public or semi-public nature of
interaction. Online boundary management explains how a subset of users might
manage their personal and professional domains in the online environment. The main
difference between boundary management in the digital space as opposed to the
physical space is that users can choose from a range of strategies how they want their
online audiences to perceive them. On social media, spatial and temporal boundaries
make it difficult for users to structure and separate the various roles they maintain in
different domains. The way in which individuals might manage their personal and
professional worlds online can result in enhanced personal autonomy, as users can
choose to present themselves in ways that verify or enhance their existing self-views.
By combining boundary management practices of segmentation and integration with
motivational drivers, users decide from a menu of different behaviours how their
professional audience perceives them. Individual autonomy is integral to how
individuals present online versions of themselves and how they manage their personal
and professional domains. The next chapter will discuss how employer practices can
potentially threaten personal autonomy interests on social media and how an
employee’s personal use of social media can increase employer risk and legal liability.
Chapter 3 Corporate risk and social media 79
Chapter 3 Corporate risk and social
media
The previous chapter outlined employee’s personal use of social media. It
focussed on the various challenges for users in performing their identities and
managing their audiences on social media as opposed to the physical space. User
autonomy remained an important factor in the way in which users might manage their
online audiences.
This chapter focusses on the opportunities and risks of social media from an
employer’s point of view. Some firms encourage employees to promote their brand
through their personal social media accounts that can enhance the firm’s authenticity
and connection with its clients and consumers. This practice however, comes with
some risk to employers and employees. I then discuss various employer obligations
and duties owed to employees and how these are enlivened through employee social
media (mis)use that can adversely affect the business’ proprietary interests and other
employees’ wellbeing. Employer control over personal interactions on social media is
necessary in some cases to ward off potential legal risks. Next, I discuss how the
implementation of a social media policy is one way in which employers can regulate
personal behaviour to reduce social media risk. I conclude that the challenge for
Australian employers is to strike a delicate balance between employer control in
mitigating for risk and reinforcing employee trust.
3.1 Introduction
Firms strive for a good corporate reputation on social media through community
participation, collaboration with audiences, and customised content that influences
public perception. To maintain a good reputation, firms focus primarily on risk that
can harm their legitimate business interests, other employees, consumers or investor
interests. A firm’s reliance on brand promotion through its employees’ interactions on
their personal accounts can enhance or harm business reputation. A positive corporate
reputation can relate to how well an employee has internalised the brand and how their
actions align with company values. Employers who extend their organisational
branding process beyond the parameters of work by exploiting employees’ personal
80 Chapter 3 Corporate risk and social media
connections also extend their control over the public/private boundary in ways that can
limit one’s personal autonomy. Alternatively, an employee’s (mis)use of social media
can potentially tarnish corporate reputation.
An employee’s personal use of social media can increase a firm’s exposure to
corporate risk and legal liability. Social media’s unique affordances of visibility,
spreadability and persistence make it possible for an employee’s potentially damaging
posts to become available to a wider audience where the ability to eliminate or counter
false or malicious statements is virtually impossible. Employers have sound reasons to
increase their control over their employees’ communications in these spaces. The
problem is, when mitigating for risk, employers can over-reach their control over
personal communications that can diminish employee trust and the way in which
employees use the online space.
Employers may consider their own legal obligations owed to employees in their
efforts to better balance employer control and employee trust. Employers have
concurrent common law and statutory legal duties and obligations that they owe to
employees. The National Employment Standards (NES) and general protections in the
Fair Work Act 2009 (Cth) are minimum standards that protect national system
employee interests. These protections co-exist with express and implied contractual
obligations, minimum standards in enterprise agreements, and common law duties of
care to provide a safe workplace that can also extend to other statutory health and
safety obligations. Employee interactions on social media can be sources of risk that
can harm a firm’s proprietary interests and personal safety of other employees.
Workplace bullying legislation is just one example of a risk that can extend an
employer’s safety obligations owed to employees by making employers directly
accountable to a third-party regulator through Fair Work Commission orders. The
bullying provisions that serve to protect employees from online harm can challenge
employers control over perpetrators of bullying when the alleged bullying occurs
whilst the employee is performing work.
One way in which employers mitigate for their employees’ social media (mis)use
is through their enforcement of social media policies. Whilst the Fair Work
Commission supports employers regulating their employees’ behaviour through social
media policies, their support fell short of how an effective social media policy could
effectively balance employee/employer competing interests. This thesis will suggest
Chapter 3 Corporate risk and social media 81
best practice models to provide more clarity and certainty around personal behaviour
within these online spaces.
The analysis in this chapter will, in part, answer research question one: How do
current legal doctrine and employment contractual agreements balance employee and
employer social media interests? I examine employer social media risk that addresses
the first sub-question: What are the uses of social media for business and how can
firms mitigate for social media risk?
3.2 Corporate Reputation on Social Media
A good corporate reputation matters for companies as it enhances value. There
is no unambiguous, generally accepted definition for the term ‘corporate reputation’.204
A company can host multiple reputations in relation to different company stakeholders
including its customers, investors, employees, and society.205 Community
participation, collaboration and tailor-made content206 on social media can contribute
to corporate reputation that can influence public perception of an organisation.
Corporate value can include enhancing financial value, purchase intentions, and
customer and employee loyalty to the firm.207 Organisations can benefit from social
media use as another way to gain business value by using online client information
through customer engagement to promote brands and increase product sales or
services. Stakeholders in social media environments can facilitate an electronic word-
204 Manto Gotsi and Alan Wilson, ‘Corporate Reputation: Seeking a Definition’ (2001) 6 Corporate
Communications: An International Journal 24; John Balmer and Stephen Greyser, ‘Corporate
Marketing’ (2006) 40(7/8) European Journal of Marketing 730, 731; Michael Barnett, John Jermier
and Barbara Lafferty, ‘Corporate Reputation: The Definitional Landscape’ (2006) 9(1) Corporate
Reputation Review 26, 29.
205 Michael Barnett, John Jermier and Barbara Lafferty, ‘Corporate Reputation: The Definitional
Landscape’ (2006) 9(1) Corporate Reputation Review 26, 34 whereby observers’ collective judgments
of a corporation based on assessments of the financial, social, and environmental impacts attributed to
the corporation over time. Others consider that corporate image and reputation are distinct entities, 30.
206 Brian Jones, John Temperley and Anderson Lima, ‘Corporate Reputation in the Era of Web 2.0:
The Case of Primark’ (2009) 25(9-10) Journal of Marketing Management 927, 931.
207 Manto Gotsi and Alan Wilson, ‘Corporate Reputation Management: ``living the Brand’’’ (2001)
39(2) Management Decision 99.
82 Chapter 3 Corporate risk and social media
of-mouth that amplifies brand possibilities and fosters a favourable corporate
reputation. With the potential commercial advantage of an organisation’s social media
use,208 the small percentage of companies not using social media to market and
collaborate with potential customers will find it difficult to compete against those that
do.209 This is because consumers are increasingly looking to social media to source
information, communicate, and purchase products and services, which puts pressure
on organisations to consider new ways of doing business.210 The next part of this
chapter will explain how employee interactions on social media are important in
maintaining a good corporate reputation. This is because employees are the primary
interface with customers and suppliers211 and their individual behaviour and actions
can have considerable impact on corporate reputation.
3.3 Employee Perceptions of Work and Corporate Reputation
Socially-engaged employees can be a double-edged sword in either enhancing
or destroying corporate reputation. This is because employees view their
organisation’s culture from internal and external sources that influence their online
interactions. In enhancing corporate reputation whilst performing work, employees
can yield incredible market power in promoting the corporate brand online; yet, at the
same time, their interactions can just as easily tarnish a firm’s reputation and have legal
consequences. Early studies have shown that employees play a significant role in
portraying the corporate image that influences the ways in which external stakeholders
208 Jim Edwards, ‘What Is a Facebook “Like” Actually Worth in Dollars’ [2013] Business Insider
<http://www.businessinsider.com/what-is-a-facebook-like-actually-worth-in-dollars-2013-3> where
multiple studies focus on the value of Facebook ‘Likes’.
209 Michael Maoz and Jenny Sussin, ‘What You Need to Know about Social Media for Customer
Service’ Gartner (September 2013) < https://www.gartner.com/doc/2589021/need-know-social-
media-customer>. Gartner predicts that businesses without an all-channel customer engagement
strategy will lose 15-20% of their best customers to competitors that do have a strategy.
210 James Leavesley, ‘Social Media Risk: Closing the Management Gap to Safeguard Reputation and
Productivity’ (2015) 2(4) Journal of Digital & Social Media Marketing 351.
211 Karen Cravens and Elizabeth Oliver, ‘Employees: The Key Link to Corporate Reputation
Management’ (2006) 49(4) Business Horizons 293, 295.
Chapter 3 Corporate risk and social media 83
perceive the organisation.212 Dowling created a model that suggests that an employee’s
perception of the firm can derive from the organisation's vision, its culture and formal
policies, and its internal and marketing media communication activities.213 External
perceptions of the organisation also influence employees' perceptions through the
feedback they receive from clients during the service.214
In external business communications, some employers encourage their
employees to build a favourable corporate reputation by becoming brand ambassadors.
How employees have internalised the brand and how well their actions align with
company values215 is a crucial element of the corporate image formation processes.
Whilst organisations encourage employees’ branding behaviour during work time,
some employers also deploy employees’ personal and social lives as a resource for
constructing brand identity that has the potential to disrupt personal autonomy and
cause conflict.
Some employers appropriate their employees’ personal accounts as a way in
which to amplify brand awareness. Employers can potentially increase brand
awareness by using employees who might be ‘stars’ on social media and turning them
into ‘superstars’ by blending personal branding with corporate branding.216 The
problem with this practice is that private/public boundaries of the shared online space
can facilitate new concerns for employers and employees in which further contestation
may arise.217 This is primarily because contestation arises out of the capacity of actors
in the employment relationship to appropriate effort and identity that are changed and
212 Sherril Kennedy, ‘Nurturing Corporate Images’ (1977) 11(3) European Journal of Marketing 119,
126.
213 Grahame Dowling, ‘Managing Your Corporate Images’ (1986) 15(22) Industrial Marketing
Management 109, 111,113.
214 Ibid.
215 Leslie de Chernatony, ‘Brand Management Through Narrowing the Gap Between Brand Identity
and Brand Reputation’ (2010) 15(1-3) Journal of Marketing Management 157, 167.
216 Cornelius Reiman, Public Interest and Private Rights in Social Media (Chandos, 2012) 181.
217 McDonald and Thompson, above n 58, 7. Note that in Oregon in the United States, a Bill was
passed that forbids employers from appropriating their employees’ personal social media accounts for
business advertising. Oregan State Legislature (August 2016)
<https://olis.leg.state.or.us/liz/2015R1/Measures/Overview/SB185>.
84 Chapter 3 Corporate risk and social media
constrained by redrawing the public/private boundary.218 Organisational branding
conducted in this way can shift the boundaries of employer control in ways that can be
both advantageous and detrimental for corporate reputation.
3.3.1 The advantages and disadvantages of appropriating employee accounts
Organisations that appropriate their employees’ personal communications for
branding purposes can enhance corporate interests in two main ways. First, employers
can use corporate branding as a tool to regulate individual identities and behaviours
that acts as a form of ‘disciplinary control.’219 Amplifying the corporate brand
regulates employees’ personal identities by encouraging them to present themselves in
a way that is valuable for the organisation and one that supports its core beliefs, norms
and mindsets.220 This branding process can be harmful for the employee’s personal
autonomy as it has the potential to prevent full expression of individuality where
individuals must recognise the brand values as their own.221 Critics have suggested
that bringing employees’ private lives into work is a form of ‘capitalist control.’222
Employers can also benefit from enhanced brand promotion through their
employees’ unpaid labour. Employees living the corporate brand in their own time and
on their personal social media accounts are likely performing unpaid work that
amounts to surplus labour.223 Firms pay their employees for labour for a certain
218 Ibid 8.
219 Michel Foucalt, ‘Discipline and Punish; The Birth of the Prison’ (Penguin books, 1977) 167 where
Foucault explains the exploitation of control over the behaviour of military personnel and students in
which training these individuals makes them both objects and instruments of discipline at 170.
220 Stephanie Russell, ‘Internalizing the brand? Identity regulation and resistance at Aqua-Tilt’ in
Matthew Brannan, Elizabeth Parsons and Vincenza Priola, Branded Lives (Edward Elgar, 2011) 101.
221 Dan Karreman and Anna Rylander, ‘Managing Meaning through Branding-The Case of a
Consulting Firm’ (2008) 29(1) Organization Studies 103, 106.
222 Peter Fleming, ‘Towards a ‘New’ Cultural Politics of Work’ in Authenticity and the Cultural
Politics of Work: New Forms of Informal Control (Cambridge University Press, 2009) 11; Peter
Fleming, Resisting Work: The Corporatization of Life and Its Discontents (Temple University Press,
2014) 9 where Fleming describes this new corporate power as ‘biopower’- the extension of work into
every facet one’s life and the boundary between work and non-work dissolves.
223 Fuchs, above n 3, 16.
Chapter 3 Corporate risk and social media 85
number of hours per day, whilst labour beyond these hours is unpaid.224 Social media
networks and networking applications have tended to increase brand promotion, often
through the unpaid labour of employees. An example where this can occur is through
applications such as ‘LinkedIn Elevate.’225 This application enables employees to
share organisational content to their professional connections with a view to increase
corporate brand authenticity and foster greater relationships with clients and business
associates. While businesses can benefit from branding in this way, there are some
disadvantages for employees and employers.
Damage to the corporate brand can occur if employers constrain an employee’s
identity and values to that of a brand ambassador on their personal accounts.
Employees can be required to ‘buy in’ to the culture and act in ways that meet the
organisation’s norms and values.226 Where an employee’s personal values or personal
branding strategies are inconsistent with corporate values, formal rules that govern
employee social media use can lead to alienation and resistance among employees.227
Firms should be careful that compliance is not too rigid to the extent that it diminishes
an employee’s personal autonomy. This is because a rigid compliance framework may
drive employees to resist constraints by engaging in deviant acts.228 Employers that
attempt excessive control requirements over how employees make use of their
personal social media accounts can lead to brand saboteurs who will actively work
against the brand idea. The next part of this chapter explores the ways in which
personal (mis)use of social media can increase business risk.
224 Ibid 16, 40.
225 ‘Employee Activation| LinkedIn Elevate’ LinkedIn (October 2015)
<https://business.linkedin.com/elevate>.
226 Christopher Land and Scott Taylor ‘Be who you want to be: Branding, Identity and the Desire for
Authenticity’ in Matthew Brannan, Elizabeth Parsons and Vincenza Priola, Branded Lives (Edward
Elgar, 2011) 92.
227 Peter Fleming, ‘Cobain as Management Consultant? Designer Resistance and the Corporate
Subversive’ in Authenticity and the Cultural Politics of Work: New Forms of Informal Control
(Cambridge University Press, 2009) 10.
228 Russell, above n 220, 105.
86 Chapter 3 Corporate risk and social media
3.4 Categories of Risk and Employer Control
A user’s social media (mis)use can damage the interests of three main corporate
stakeholders: employees, investors, and consumers. An employer’s failure to protect
stakeholder interests can increase corporate legal impacts and adversely affect
corporate reputation. This section defines risk in terms of personal information and
how inadequate employer control can adversely affect corporate legal liability.
3.4.1 Defining risk
Similar to the difficulties in defining corporate reputation, the concept of risk
also has various meanings. Governments, the public and private sectors, and
individuals manage risk by attempting to avoid harm. One broad definition of risk is
the ‘effect of uncertainty on objectives’229 that is not specific to any industry or sector
but is applied ‘… to a wide range of activities [and] … to any type of risk, whatever
its nature, whether having positive or negative consequences.’230 However, risk is
more widely understood as a threat that refers to the ‘uncertainty about the severity of
the events and consequences of an activity with respect to something that humans
value.’231 For the purposes of this thesis, the regulatory definition of risk is applied as
the ‘probability of a particular event or hazard occurring and the consequent severity
of the impact of the event.’232 Risk can be either internal or external. Entities can have
a certain amount of control over internal risks – such as entities building a robust
culture of integrity – but entities have little control over external risks; for example,
natural disasters.233 Whilst there are certain types of various reputational risks,234 this
229 Standards Australia (2009) AS/NZS ISO 31000:2009 Risk Management Principles and guidelines
(Sydney).
230 Ibid.
231 Terge Aven and Ortwin Renn, ‘On Risk Defined as an Event Where the Outcome Is Uncertain’
(2009) 12(1) Journal of Risk Research 2.
232 Robert Baldwin, Martin Cave and Martin Lodge, Understanding Regulation: Theory, Strategy and
Practice (Oxford University Press, 2nd ed, 2012) 82.
233 Andrea Bonime-Blanc, The Reputation Risk Handbook: Surviving and Thriving in the Age of
Hyper-Transparency (DoSustainability, 2014) 39.
234 Ibid 40-41. There are four classifications of reputational risk: Natural, Leadership, Operational, and
Environmental.
Chapter 3 Corporate risk and social media 87
part of the chapter is concerned with a firm’s external risks that may affect their
stakeholders’ interests, and internal risks from employees’ personal social media use
that may affect corporate reputation and liability.
3.4.2 External risks and stakeholder interests
Regulators and industry bodies have imposed greater obligations on firms to
protect consumer and investor/stakeholder interests by monitoring the misuse of social
media by third parties. These regulators have issued firms with best practice guidelines
and increased reporting obligations to protect stakeholder interests. The problem is,
regulatory and industry guidance is limited to mitigating these external stakeholder
risks to the exclusion of the wider risks that employee (mis)use of social media can
have on corporate reputation. Employers have little guidance in how to protect its
corporate reputation against the sum of all probable legal effects that can affect their
firm.
The law and industry guidelines provide a way for businesses to manage their
risk and legal vulnerabilities on social media. Businesses that use social media to
engage with customers and clients are obliged to comply with various advertising and
consumer protection laws. ASX listed companies have further responsibilities to
protect investor economic interests and follow strict ASX guidelines to ensure
compliance. Some firms use analytic tools to monitor consumer sentiment of their
brand in their efforts to preserve their corporate reputation. Users that post negative
comments about the firm cannot only affect corporate reputation but can also lead to
increased legal vulnerability. Users’ negative reviews or comments on social media
can increase harm for businesses because of social media’s affordances that reach
wider audiences and permanency of content. For example, a disgruntled customer
might post negative comments online that can harm the firm’s reputation and its
relationship with other customers. The resultant harm might affect profits and
customer following.235 The law provides some guidance for businesses to mitigate for
these kinds of risk.
235 Carl Jefferson and Shannon Traughber, ‘Social Media in Business’ Cameron University (April
2012) <http://www.cameron.edu/uploads/f7/63/f7639eea588a5e5a3ccd7d9be0c0fc62/2.pdf>.
88 Chapter 3 Corporate risk and social media
3.4.3 Consumer protection
In Australian law, the Australian Consumer Law, the common law, ASX market
rules, national advertising standards and defamation legislation all place obligations
on organisations to protect its consumers and investors. These obligations involve
organisations monitoring various social media accounts for comments that may
adversely affect the company’s business interests and those of its customers and
investors. Organisations have an interest in monitoring and regulating social media
conduct to protect its brand reputation. Increasingly, regulators are imposing greater
obligations on organisations to monitor their social media interactions, whether the
organisation chooses to be engaged in social media or not. Where firms engage with
users through content marketing of their products or services on social media, firms
are responsible for page administration and the moderation of users’ posts on their
page.236
Corporations are vulnerable to online comments that are misleading and
deceptive, are defamatory, or meet the requirements of common law injurious
falsehood claims. Any client, customer, competitor or employee can cause business
reputational damage by virtue of the content of their social media posts. The tort of
injurious falsehood is the publishing of false representations made maliciously about
the plaintiff’s business or goods that cause the business damage.237 An alternative
action can be brought in a defamation action whereby the defamatory matter leads
others to think less of the corporation and is reasonably referable to the plaintiff,238
and can only be brought against a corporation with less than 10 employees,239 or if it
236 ACCC v Allergy Pathway (No 2) [2011] FCA 74; Competition and Consumer Act 2010 (Cth);
Facebook pages and other official business accounts are forms of advertising under Australia,
Advertising Standards Board, Diageo Australia Pty Ltd Case Report no. 00272/12,
<http://ms.adstandards.com.au/cases/0272-12.pdf>; The Australian Association of National
Advertisers (AANA) has released ‘Best Practice Guidelines on Responsible Marketing
Communications in the Digital Space’ (8 November 2013) < www.aana.com.au>.
237 Ratcliffe v Evans [1892] 2 QB 524, 528; AMI Australia Holdings Pty Ltd v Fairfax Media
Publications Pty Ltd [2010] NSWSC 1395, [29].
238 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433.
239 Defamation Act 2005 (Qld) s 9(2).
Chapter 3 Corporate risk and social media 89
is a not for profit corporation – for example a foster care organisation.240 A publication
that amounts to injurious falsehood or defamation action could also be misleading or
deceptive conduct that breaches Australian Consumer Law legislation.241
3.4.4 Investor protection
ASX employers may be liable for what their employees and other users post
online about ASX market activity. The misuse of social media has prompted regulators
to enforce ASX guidelines against listed companies in their efforts to protect the
market and investors. These new ASX guidelines emulated from a share market fallout
from Twitter hoaxes and fraudulent media releases causing false markets and a
reduction in shares and company value.242 As users begin to realise the power of social
media, stock exchange hoaxes may become increasingly common in the future.243
ASX guidelines require companies to monitor what users publish online to:
…strike an appropriate balance between the interests of the market in receiving
information that will affect the price of a listed entity’s securities and the interests of
the entity in not having to disclose information prematurely or where inappropriate to
do so.244
Companies are required to monitor online discussions and rumours that can lead
to false markets and be ready to respond to any speculation with the information the
company considers necessary.245 If there is a false market in an entity’s securities, the
ASX can request any information to correct or prevent the false market.246 If an entity
240 North Coast Children’s Home Inc. T/A Child & Adolescent Specialist Programs &
Accommodation (CASPA) v Martin (2014) NSWDC 125. The foster care organisation and two of its
employees brought a defamation action against the respondent.
241 Competition and Consumer Act 2010 (Cth) s 18, ACCC v Allergy Pathway (No 2) [2011] FCA 74.
242 Eli Fisher and Peter Knight, ‘Social Media Obligations for ASX-Listed Entities’ [2013] (August)
Internet Law Bulletin 114, 116-117.
243 Ibid 117.
244 ASX Listing Rules, Guidance Note 8, (1 May 2013) 7.
<http://www.asxgroup.com.au/media/PDFs/gn08_continuous_disclosure.pdf>.
245 Alex Butterworth and Bennett Greenhalgh, ‘Loose Tweets Sink Fleets, Social Media and Corporate
Compliance’ [2013] (July) Law Society Journal 51, 53.
246 ASX Listing Rules, above n 244, 39.
90 Chapter 3 Corporate risk and social media
fails to respond to the rumour that may affect market trading in a timely manner, the
ASX has the power to require the entity to do so.247 Making a false statement or
disseminating information that is knowingly reckless is likely to destabilise the price
of financial products and constitutes a serious charge involving a maximum fine of
$495 000 and up to 10 years imprisonment.248 Legal professionals249 have expressed
that companies should implement strong internal policies and educational programs to
not only mitigate for these kinds of risks, but also raise employee awareness that their
posts can affect their firm’s market performance.
The ACCC has enforced advertising standards to protect the interests of
consumers under Australian Consumer Law. Facebook pages and other official media
accounts are forums for ‘advertising’.250 As advertisements, they need to comply with
codes and community standards. The ‘advertiser’ or business social media page owner
is responsible for moderating and censoring the comments, photos and links that users
post to their official page. Businesses can be liable for what they publish on their
business pages as well as what customers comment or post about them online. The
Australian Association of National Advertisers (AANA) has released best practice
guidelines on Responsible Marketing Communications in the Digital Space.251 In July
2013, the Interactive Advertising Bureau (IAB) Australia released social media
comment moderation guidelines that set out recommendations on how organisations
should moderate user-generated comments posted to social media channels.
Currently, regulators, industry and unions have offered little guidance on how to
protect employee interests in online spaces in the same manner as other stakeholder
interests are protected online. The implementation in recent times of social media best
practice guidelines to protect investor and consumer interests have effectively forced
employers to monitor their online brand to fulfil their compliance obligations. While
employers might view their employees’ social media activity as a source of risk, they
247 Ibid 40.
248 Corporations Act 2001 (Cth) s 1041E.
249 Butterworth and Greenhalgh, above n 245, 54.
250 Advertising Standards Board, Diageo Australia Pty Ltd Case Report no. 00272/12, (8 November
2013) <http://ms.adstandards.com.au/cases/0272-12.pdf>.
251 Australia, Advertising Standards, ‘Best Practice Guidelines on Responsible Marketing
Communications in the Digital Space’, (8 November 2013) <www.aana.com.au>.
Chapter 3 Corporate risk and social media 91
are relevant business stakeholders that have interests in protecting what is important
to them in online environments. Employers have little by way of best practice models
in which they can help preserve employee interests online. An employee’s personal
use of social media that has the potential to affect business reputation and profits is a
real concern for regulators and employers.
3.4.5 Internal risk
An employee’s personal social media use can increase a firm’s exposure to
corporate risk and legal liability. A Deloitte survey revealed that business executives
from 300 major companies stated that social media posed the greatest risk to their
businesses in the upcoming year.252 One reason is users, including employees, tend to
lower their inhibitions and feel protected from the consequences of their online speech
that creates an artificial sense of anonymity online.253 Various categories of risk might
be applicable where information is available through one’s personal profile. For
example, the occupational risk category is a major concern for employers as employees
who use social media to express their private views in their own time may harm
business reputation.254 Other categories of risk relevant to employers include:255
recreation risk – social media use for recreational purposes rather than professional
purposes; and social risk – private information made available inadvertently to a wider
audience that can cause business reputational damage, privacy breaches or lead to
cyberbullying.256 These categories demonstrate that the risk does not have to
necessarily be a work-related risk, but what is important for organisations is the
252 Lisa McGrath, ‘Why You Need a Legal Social Media Policy’ (2015) 32(4) Computer and Internet
Lawyer 7.
253 David Rosenblum, ‘What Anyone Can Know: The Privacy Risks of Social Networking Sites’
(2007) 5(3) IEEE Security & Privacy 40, 45.
254 Brendon Swedlow et al., ‘Theorizing and Generalizing about Risk Assessment and Regulation
through Comparative Nested Analysis of Representative Cases’ (2009) 31(2) Law & Policy 236, 237.
255 Ibid.
256 ‘Opinion of the European Economic and Social Committee on the “impact of social networking
sites on citizens/consumers’” (own-initiative opinion) (2010/C 128/12), European Economic and
Social Committee (2010), European Union: OJ (2010/C 128/12) <http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52009IE1697>.
92 Chapter 3 Corporate risk and social media
probability of a particular event occurring and the impact of potential harm from that
event. Employees participating in online conversations related to work can also lead
to risk and increased legal liability.
Commenting about work on social media has the potential to increase an
organisation’s legal liability in important ways. Employees speaking out about work
issues is not a new phenomenon. Historically, employees have used pamphlets, letters
to the editor, or public spaces to air their issues. An employee who vents in a park
might not expect to reach a large diverse audience, but the key difference today is the
collapsed contexts that exist within online public spaces. Online communication
platforms have a much larger audience reach than traditional methods of venting
employee concerns. Employees who previously aired their frustrations among co-
workers at the water cooler or in third places such as a café or hotel bar now have a
much wider audience online. In this context, an employer’s ability to eliminate or
counter false or malicious statements is severely restricted.257
An employee’s (mis)use of social media can expose the firm to a range of
proprietary risks. An employer can be vicariously liable for an employee’s intentional
tort. Vicarious liability imposes liability upon the employer for an employee’s wrong
committed during the course of their employment.258 For example, an employer can
be liable for an employee’s breach of confidential information if that employee has
posted commercially sensitive information on their social media account. Employers
that possess trade secrets and other commercially sensitive information will often
express confidentiality clauses in their employment contracts that may extend beyond
the term of employment.259 In Australia, confidential information includes personal,
technical or commercial information that stems from the equitable action for breach of
257 Henry Lowenstein and Norman Solomon, ‘Social Media Employment Policy and the NLRB:
Uniform State Laws as a Solution?’ (2015) 25(1) Southern Law Journal 139, 146.
258 Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36. See also where
statutory instruments can make employers liable for an employee’s private conduct that has a
connection with their work. For example, the Sex Discrimination Act 1984 (Cth) s 106.
259 Kathy Bowry, Michael Handler and Dianne Nicol, Australian Intellectual Property, Commentary,
Law and Practice, (Oxford University Press, 2010) 550.
Chapter 3 Corporate risk and social media 93
confidence260 or by express or implied contractual terms. An important attribute of
trade secrets is that they have some commercial value such that disclosure to a
competitor would cause detriment to the owner of the subject matter.261
Another example of a proprietary risk for employers is an employee’s breach of
copyright. If an employee posts content that infringes copyright, an employer may be
vicariously liable for the employee’s infringement.262 For example, employees either
at work or in their personal time might post intellectual property content, including a
firm’s trademark, logo, design or patent without the firm’s permission or authorisation.
The copyright owner will likely recover more damages by enforcing action against the
infringer’s employer. The risk to a firm’s IP is likely to increase over time as firms
adopt new sharing apps to increase brand awareness and client engagement. For
example, employee use of live-streaming apps such as ‘Periscope’ may potentially
infringe a firm’s IP rights if employers do not carry out their due diligence when
implementing these new technologies.
An employer can be vicariously liable for their employees misleading or
deceptive actions that can cause harm for third parties and damage the corporate brand.
For example, a federal court case highlighted how a competitor was liable for
misleading and deceptive conduct263 due to the competitor’s Facebook representations
that inferred a company had engaged in unethical practices against the respondent. In
Seafolly v Madden,264 a competitor of Seafolly posted on her personal Facebook page
and her business page that Seafolly Pty Ltd had copied some of her swimwear designs.
Seafolly alleged their competitor’s statements were misleading and deceptive,
infringed Seafolly’s copyright by reproducing and communicating Seafolly
photographs, and that she committed the tort of injurious falsehood. The court found
that the individual’s Facebook comments about Seafolly copying her swimwear
260 Re Smith Kline & French Laboratories (Australia) Ltd v Secretary to Department of Community
Services and Health [1990] FCA 151.
261 Ansell Rubber Co Pty Ltd v Ansell Rubber Industries Pty Ltd [1967] VR 37, 49.
262 Roadshow Films Pty Ltd v iiNet Ltd (2011) 275 ALR 1.
263 Trade Practices Act 1974 (Cth) regarding false representations that has now been replaced with
misleading and deceptive conduct in Australian Consumer Law.
264 Seafolly Pty Ltd v Madden [2012] FCA 1346.
94 Chapter 3 Corporate risk and social media
designs were reckless and untrue.265 Seafolly established the misleading and deceptive
conduct claim but were unsuccessful in establishing the other claims of injurious
falsehood due to the difficulty in proving actual damage to the brand or a breach of
copyright for which they could claim damages. In this case, the swimwear designer
was a direct competitor of Seafolly’s and was self-employed. Had she been a
competitor’s employee, Seafolly might have sued her employer, not just the individual.
While an employee’s public venting allows for spontaneity of personal expression,
employee posts are difficult to retract as platform affordances allow other users to
share and copy posts that may continue to exist long after the employee has
reconsidered their actions.266 An employee’s negative post or interaction that can
potentially damage the firm’s proprietary interests and corporate reputation is likely to
enhance employer control over employee communications in an effort to limit
undesirable consequences.
3.4.6 Employer control beyond legal compliance
Employers that exert greater control over employees’ personal communications
in online spaces can increase the blurring of personal and professional domains and
diminish personal autonomy interests. Similar to some employer requirements for
employees to ‘live the brand’ as brand advocates on their personal accounts that can
harm individual identity and cause employee resistance, employers who dictate their
own standards of personal behaviour on social media raises concerns over the issue of
control.267 On the other hand, there are legitimate reasons why employers might want
to control certain personal speech in online spaces.
Regulatory compliance is one reason why some employers may restrict their
employee’s personal speech. For example, organisations are required to be transparent
265 Ibid [69].
266 Mello, above n 87.
267 See Chapter Four for a discussion about the kinds of policy directives that potentially over-reach an
employer’s legitimate control and diminish an employee’s personal autonomy interests.
Chapter 3 Corporate risk and social media 95
under consumer guidelines.268 These guidelines show that when employees endorse
the firm’s product or service (whether on social media, or at work or home) they are
to disclose their work affiliation. However, personal autonomy concerns arise when
employers issue blanket work affiliations over all personal conversations and
interactions, not just when employees endorse their firm’s products or services. For
example, a work disclaimer that is displayed on an employee’s personal profile places
the user within the context of their work. The user’s personal profile now affiliates that
user with their employer or place of work that can potentially bring the employee’s
interactions within the operation of their firm’s social media policy. Chapter 5
explains the legal repercussions when an employee’s personal comments have a direct
connection with their work. The challenge for employers in these circumstances is to
strike a delicate balance between employer control and employee trust. For example,
an increase in employer control over an employee’s personal communications might
erode that employee’s trust in the employment relationship. In maintaining legitimate
employer control and preserving employee trust, employers need to consider their own
legal liability with respect to the obligations owed to employees.
3.5 Legal Obligations Owed to Employees
Many employer obligations and duties owed to employees are contained in
legislation, modern awards, enterprise agreements and as implied or express
obligations in employment contracts. The limited scope of this thesis precludes any
discussion on further minimum standards set by modern awards or enterprise
agreements. Before a firm takes steps to mitigate for employee social media use that
can harm their proprietary interests, the firm needs to consider their liability with
respect to an employee’s post that can harm other employees. In mitigating both kinds
of risk, firms need to know the limits of their legitimate control with respect to their
duties and obligations owed to employees. This part of the chapter will overview
general employee standards that exist under the Fair Work Act 2009 (Cth) and a
268 Australian Competition and Consumer Commission, ‘Online Reviews-a Guide for Business and
Review Platforms’ (November 2013)
<http://www.accc.gov.au/system/files/Online%20reviews%E2%80%94a%20guide%20for%20busines
s%20and%20review%20platforms.pdf>.
96 Chapter 3 Corporate risk and social media
discussion of common law duties of care that can co-exist with these and other
statutory obligations in the employment relationship. I then highlight risks that can
harm the safety of employees in online environments and the challenges employers
face in protecting these interests.
3.5.1 Minimum obligations under the Fair Work Act 2009 (Cth)
Employers have statutory obligations in protecting employee interests through
ensuring minimum employment standards and general employee protections. The Fair
Work Act 2009269 (‘the Act’) sets out minimum National Employment Standards
(NES) that apply to Australian employees who are national system employees.
National system employees are persons employed by a national system employer.270
The Act sets out minimum conditions that cover maximum weekly hours, flexible
working arrangements, parental leave, annual leave, personal/carer’s leave,
compassionate leave, community service leave, long service leave, public holidays,
notice of termination and redundancy pay.271 Employers must provide a Fair Work
Information statement to each new national system employee that sets out the NES
and certain other employee rights.272
General protection provisions also protect employees from any employer
adverse action. Employers273 must not take adverse action against another person
because the other person has a workplace right where they are entitled to the benefit
under a workplace law, or are able to make a complaint or inquiry to a person or body
having the capacity under a workplace law to seek compliance with that law or a
269 Fair Work Act 2009 (Cth) Part 2-2.
270 Ibid ss 13-14. A national system employee is a person employed by a national system employer
that is a constitutional corporation or the Commonwealth or a person in connection with constitutional
trade or commerce.
271 Fair Work Act 2009 (Cth) Part 2-2.
272 Ibid s 124. These other employee rights might include additional rights found in modern awards or
enterprise agreements. The Act sets out a broad range of collective rights to bargain for better
employment conditions that are beyond the scope of this thesis.
273 Fair Work Act 2009 (Cth) Part 3-1. See s 340.
Chapter 3 Corporate risk and social media 97
workplace.274 For the purposes of employee conversations on social media, an
employer’s adverse action against an employee might include a situation where an
employer dismisses the employee because of a protected attribute.275 In addition to
these statutory protections, employers owe various express and implied duties at
common law.
3.5.2 Duties in contract
The employment contract contains a range of implied and express terms that
imposes duties on employers with respect to their employees. Until recently, implied
in the contract of employment were two duties that required employers and employees
to have mutual trust and confidence in each other and to act in good faith in performing
their duties under the contract. Then, the High Court of Australia ruled that it was not
necessary to imply a duty of mutual trust and confidence as part of Australian common
law.276 In other words, employers do not owe their employees an obligation of trust
and confidence. As a matter of law, an employer is required to provide a safe system
of work.277 An employer who fails to provide a safe work environment may constitute
a breach of that contractual duty. Some statutory provisions, such as workplace health
274 Ibid s 341.
275 Fair Work Act 2009 (Cth) ss 342 (1)(a); s 351 Discrimination that can include a person’s race,
colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s
responsibilities, pregnancy, political opinion, national extraction or social origin. The protections
specific to each individual state’s anti-discrimination law will apply. See a deeper discussion on
particular protected attributes that might arise on social media in Chapter Five.
276 See more discussion in Chapter Five in Commonwealth Bank of Australia v Barker (2014) 253
CLR 168. The ruling affirmed the implied duty of co-operation between employers and employees
and left open the possibility that a general obligation of good faith existed in the contract of
employment.
277 At common law, this duty operates concurrently with an employer’s duty of care to its employees
to take reasonable care to carry on its business in such a way as to not subject employees to
unnecessary and foreseeable risks of injury Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR
301; 65 ALR 1, 5. The single duty is divided into three headings: proper selection of skilled persons to
manage and superintend the business, provision of maintenance of proper plant and equipment and
provision of a safe system of work.
98 Chapter 3 Corporate risk and social media
and safety legislation, reflect this duty. This means workers may pursue workplace
complaints with a view to receiving compensation through a range of common law
applications – such as breach of contract or negligence – or statutory instruments
including workplace health and safety prosecutions, worker’s compensation claims,
and a variety of Fair Work provisions.
3.5.3 Duties in negligence
An employee can commence an action in negligence where the employer may
be liable for harm caused by another employee. A negligence action refers to careless
conduct that objectively falls short of that required by society to protect the interests
of someone with whose interests a defendant ought to be concerned.278 A negligence
action against an employer consists of three key elements: a) the existence of a duty of
care owed by the employer to the employee; b) the employer breached the standard of
care; and c) the employee suffered damage due to the employer’s breach of that duty.
The established duty of care279 the employer owes to their employees operates
concurrently with the employer’s duty to provide a safe system of work in contract.
The scope of the employer’s duty is to take all reasonable care to carry on its business
in such a way as to not subject employees to unnecessary foreseeable risks of injury.280
In place of a broad definition, courts will establish what a safe system of work is with
reference to a particular case.281 For example, if an employee harasses, bullies or
assaults a fellow employee, this conduct may be a failure of an employer to provide a
safe system of work if such behaviour is foreseeable.282 Aside from common law
actions, employees may also seek a remedy against their employer through various
state and national health and safety statutory instruments.
278 Tame v New South Wales (2002) 211 CLR 317; 191 ALR 499, [8].
279 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225.
280 Smith v Charles Baker & Sons [1891] AC 325.
281 Hughes v South Australia (1982) 29 SASR 161.
282 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, [25].
Chapter 3 Corporate risk and social media 99
3.5.4 Duties in workplace health and safety legislation
National workplace health and safety uniform legislation imposes a wide range
of statutory duties on some employers with respect to safety in the workplace.283 The
national uniform legislation imposes a general duty for employers to ensure the health
and safety of workers as far as is reasonably practicable and charges the employer with
specific duties to eliminate or minimise these risks.284 Workplace health and safety
legislation imports concepts that are similar to the law of negligence285 but there are
distinct differences. The main difference is that establishing a breach of the legislation
does not require that an employee suffers any damage or that any injury was
foreseeable as required in an action in negligence.286 Workplace health and safety
legislation can extend the common law duty employers owe to employees by providing
the basis for which workers can bring an action in a breach of statutory duty against
their employer.287 An employer’s non-compliance with the legislation may incur
283 The national uniform safety legislation took effect in every jurisdiction except South Australia,
Tasmania, Victoria and Western Australia. See Work Health and Safety Act 2011 (Cth); Work Health
and Safety Act 2011 (ACT); Work Health and Safety Act 2011 (NSW); Work Health and Safety Act
2011 (Qld); Work Health and Safety Act 2011 (SA); Work Health and Safety Act 2012 (Tas); Work
Health and Safety Act (National Uniform Legislation) Act 2011 (NT); Occupational Health and Safety
Act 2004 (Vic); Occupational Health and Safety Act 1984 (WA).
284 Work Health and Safety Act 2011 (Cth) ss 19-26. See for example s 19 (3) (a) the provision and
maintenance of a work environment without risks to health and safety; (b) the provision and
maintenance of safe plant and structures; and(c) the provision and maintenance of safe systems of
work; and (d) the safe use, handling and storage of plant, structures and substances; (e) the provision
of adequate facilities for the welfare at work of workers in carrying out work for the business or
undertaking, including ensuring access to those facilities; and (f) the provision of any information,
training, instruction or supervision that is necessary to protect all persons from risks to their health and
safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that
the health of workers and the conditions at the workplace are monitored for the purpose of preventing
illness or injury of workers arising from the conduct of the business or undertaking.
285 Chugg v Pacific Dunlop Ltd (1990) 170 CLR, 265.
286 R v Australian Char Pty Ltd [1999] 3 VR 834, 848-849.
287 The duty can arise under the common law or statute. The health and safety legislation can provide
the basis for a private cause of action under the tort of breach of statutory duty. See Waugh v Kippen
(1986) 160 CLR 156; 64 ALR 195. For a public authority, the Civil Liability legislation in all
100 Chapter 3 Corporate risk and social media
further liability both under the Act and be relied upon as evidence of negligence in
common law.288 Whilst employees can instigate these kinds of actions to determine
employer fault, worker’s compensation schemes289 operate irrespective of who is at
fault for an employee’s injury arising out of the course of their employment. Whilst
employees can receive an amount of statutory compensation payments for their work
injury, where statutorily permitted, employees can also proceed under a common law
action to obtain the balance for full compensation in relation to their claim.290
Another way employees can seek compensation in negligence is through
claiming that their employer was vicariously liable for another employee’s conduct.
Employees performing authorised acts done in the course of their employment can
include incidental activities such as attending social, sporting and educational
functions at which the employee is encouraged to attend.291 The challenge lies in
distinguishing between an employee’s authorised and unauthorised acts and conduct
that has a connection with work in situations outside of the workplace that may now
take place on social media platforms. Employees bullying other employees in online
contexts for example, can extend employer liability that exist within national health
and safety schemes.
3.5.5 Liability for employee harm online
Employers can incur liability for their employees’ social media posts that harm
the safety and wellbeing of other employees. Just as excessive employer control over
jurisdictions except the Northern Territory and South Australia accept that an act or omission of a
public authority will only be unreasonable if another public authority with the same functions would
consider the act or omission to be reasonable. See for example Civil Liability Act 2003 (Qld) s 36.
288 Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195.
289 Workers Compensation Act 1951 (ACT); Worker’s Compensation Act 1987 (NSW); Workplace
Injury Management and Workers Compensation Act 1998 (NSW); Worker’s Rehabilitation and
Compensation Act 1986 (NT); Workers Compensation and Rehabilitation Act 2003 (Qld); Work
Health and Safety Act 2012 (SA); Workers Rehabilitation and Compensation Act 1988 (Tas); Accident
Compensation Act 1985 (Vic); Workers Compensation and Injury Management Act 1981 (WA).
290 See Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 3rd ed, 2013) 156.
291 Wolmar v Travelodge Australia Pty Ltd (1975) 8 ACTR 11; 26 FLR 249.
Chapter 3 Corporate risk and social media 101
personal communications can harm an employee’s individuality, too little can
potentially harm other employees. Employers should be concerned about the online
conduct of their employees. This is because employers can be liable for employees
who post comments considered derogatory,292 discriminatory,293 or threatening294 to
other employees, clients or managers. Where an employee’s post threatens other staff,
employers who fail to conduct inquiries upon notification, risk liability by failing to
provide a safe system of work.295
Employers have a duty to provide its employees with a safe system of work296
that includes protecting its employees from users’ conduct in online spaces. An
employer can be liable for an employee’s intentional act or conduct towards another
employee. An employer’s failure to address foreseeable harm may be grounds for
negligence. For example, if an employee’s social media post directed at another
employee constitutes sexual harassment – ‘the unwelcomed conduct of a sexual nature
that is likely to offend or humiliate a person to whom the act is directed’297 – employers
should act swiftly upon formal notification.298
292 Defamation Act 2005 (Qld), Common law applies as modified by legislation Defamation Act 2005
(Qld) s 6.
293 Anti-Discrimination Act 1991 (Qld); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act
1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth); Australian
Human Rights Commission Act 1986 (Cth).
294 Crimes Act 1958 (Vic) s 21A, Extension of stalking provisions in Brodie’s Law; Criminal Code
Act 1899 (Qld) ss 308, 359B.
295 Malcolm McBratney and Emma Weedon, ‘Social Networking and Business’ (2011) 14(4) Internet
Law Bulletin, 71; Various State Workplace Health and Safety Acts. In Queensland, the Work Health
and Safety Act 2011(Qld).
296 Smith v Charles Baker & Sons [1891] AC 325 at common law; Bankstown Foundry Pty Ltd v
Braistina (1986) 160 CLR 301, 307; 65 ALR 1, 5 applies to an employment contract that contains an
implied term requiring the employer to provide a safe workplace and statutory regulation imposing
duties on employers by virtue of the Work Health and Safety Act 2011 (Qld).
297 Anti-Discrimination Act 1991 (Qld) ss 118-119.
298 McBratney and Weedon, above n 295. Note that the Anti-Discrimination Act 1991 (Qld) is the only
state whereby sexual harassment can occur anytime, not just in the prescribed area of work.
102 Chapter 3 Corporate risk and social media
Recent laws have specifically criminalised bullying conduct299 that extends
beyond the workplace to include social networking sites. Employers can incur greater
risk in statutory provisions, such as Brodie’s Law, in relation to employee conduct
outside the workplace and in online spaces. For example, in 2011 Victoria became the
first state to criminalise cyber-bullying in Brodie’s Law.300 This legislation applies to
all forms of serious bullying that could reasonably result in the victim engaging in self-
harm. The legislation extends beyond the workplace to include social media. Brodie’s
case involved the suicide of a Victorian employee who was the victim of workplace
bullying. The case highlighted the extent of culpability of all potential actors under
regulatory health and safety obligations.301 The employer, a director, and several co-
workers were liable for safety breaches and a significant pecuniary penalty imposed.302
Since this case, the national employment regulator – the Fair Work Commission – has
increased power over employers through the Commission’s capacity to make orders
for employers to stop and prevent bullying conduct.
The anti-bullying legislative provisions require two thresholds before the Fair
Work Commission can make a preventative bullying order. Bullying at work is defined
when ‘a person or group of people repeatedly behaves unreasonably towards another
worker or group of workers and the behaviour creates a risk to health and safety.’303
Where the threshold requirements are met, the Commission has the power to make any
order it considers appropriate – other than an order requiring payment of a pecuniary
299 Crimes Act 1958 (Vic) s 21A extends the offence of stalking. See also Australia, Victorian
Department of Justice, Brodie’s Law 2011, (February 2015)
<http://www.justice.vic.gov.au/home/crime/brodies+law/>. See also Fair Work Act 2009 (Cth) s
789FD anti-bullying provisions.
300 Crimes Act 1958 (Vic) s 21A, Extension of stalking provisions. See also Commonwealth laws
include Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act
(no.2) 2004 s 474.17 using a carriage service to threaten, harass another.
301 Sustained bullying and harassing conduct may entitle the employee to seek damages for breach of
contract. Claims may be based in an employer’s non-compliance with their own bullying or
harassment policy or relative grievance procedures.
302 Worksafe Victoria, ‘Prosecution Result Summaries (2010)’ (November 2015)
<http://www1.worksafe.vic.gov.au/vwa/vwa097-002.nsf/content/LSID164635-1>.
303 Fair Work Act 2009 (Cth) s 789FD.
Chapter 3 Corporate risk and social media 103
amount – to prevent the worker from being bullied at work.304 To impose appropriate
orders, the Commission must be satisfied that the worker was ‘bullied whilst at
work.’305 The wider concern for employers is their lack of control over perpetrators
who bully their employees via social media channels.
3.5.6 Bullying ‘at work’ via social media
Employers have limited control over managing their employees’ behaviour that
affects the wellbeing and safety of other employees on social media. Potentially, an
employee can be bullied online whenever and wherever the employee is performing
work. The idea of an employee ‘being bullied at work’ in anti-bullying provisions306
does not require the perpetrator or the targeted employee to physically be at the
workplace when the alleged bullying occurs. The employee must be performing their
duties at work or engaged in activities authorised by their employer when they access
inappropriate comments. In some cases, employees performing authorised work also
include taking meal breaks from performing that work. In Bowker & Other v DP World
Melbourne Limited307 the full bench of the federal court acknowledged the meaning it
applied to the legislative definition of ‘bullied at work’ could give rise to some
‘arbitrary results’ in cases concerning social media conduct. In that case, three
employees each made application for an order to stop bullying. The employees were
seeking a Commission statement confirming the bullying conduct occurred whilst at
work. The applicants alleged the bullying conduct involved DP World members who
were also members of the Maritime Union of Australia (MUA) making unreasonable
and insulting allegations and comparisons of two of the applicants on Facebook.308 DP
World and the MUA (the Respondents) sought to have certain allegations in the
304 Ibid s 789FF(1).
305 Ibid s 789FF(1)(b).
306 Ibid s 789FD.
307 Bowker & Other v DP World Melbourne Limited [2014] FWC 7326, [23] where an application for
a stay on the proceedings were denied and particular questions relating to the applications were set
down for a Full Bench hearing in Bowker & Other v DP World Melbourne Limited [2014] FWCFB
9227, [56].
308 Bowker & Other v DP World Melbourne Limited [2014] FWCFB 9227, [4].
104 Chapter 3 Corporate risk and social media
Applicants’ Points of Claim struck out on the basis that the alleged bullying conduct
did not occur ‘at work’, within the meaning of s 789FD.309 The interpretation of the
expression ‘bullied at work’ was of general importance for a full bench determination.
The full bench ruled that the focal point was on the alleged victim of bullying
who needs to be an employee but they do not need to be ‘at work’ when a perpetrator
posts bullying comments. The employee ‘at work’ creates a temporal connection
between the bullying conduct and the employee.310 The legal meaning of the
expression ‘while the employee is at work’ encompasses the circumstance in which
the alleged bullying conduct – that is, the repeated unreasonable behaviour – occurs at
a time when the employee is ‘performing work’ and is not limited to the confines of a
physical workplace.311 An employee will be ‘at work’ at any time the employee
performs work, regardless of his or her location or the time of day. An employee will
also be ‘at work’ while on an authorised meal break at the workplace because they are
on a break from the performance of work. The full bench declined to address whether
the provisions apply in circumstances where an employee takes a meal break outside
the workplace;312 for instance, when an employee takes a meal break when working
from home.
The second issue the full bench discussed was that individual(s) who engage in
unreasonable behaviour towards an employee do not necessarily have to be other
employees: they could in fact be ‘customers.’313 These individuals need not be ‘at
work’ at the time they engage in that behaviour as the ‘bullying conduct can exist as
long as the comments remain on social media.’314 This means the Commission may
grant an application as long as the alleged victim accessed the comments while they
were ‘at work’. If the targeted employee accessed the comments in their personal time
when not at work or performing authorised duties – this may not include taking breaks
whilst performing work away from the workplace – the behaviour does not permit the
309 Ibid [3].
310 Ibid [32].
311 Ibid [48].
312 Ibid [49].
313 Ibid [31].
314 Ibid [55].
Chapter 3 Corporate risk and social media 105
employee to enliven the anti-bullying provisions to seek remedies through an
adjudicative process in Part 6-4B of the Act.
The full bench decision raises two key concerns for employers. First, employers
responding to an employee’s bullying claim may not be able to disprove the offensive
comments were accessed whilst the targeted employee was at work or performing
authorised work away from the physical workplace. The most likely way for
employers to determine whether the employee accessed the offending post whilst at
work or performing work would turn on whether the platform affordances were date
and time-stamped. Whilst some instant messaging apps, such as Messenger and
Whatsapp, are time-stamped when ‘seen’ by the recipient, other popular platforms
currently, such as Facebook and Twitter, do not offer a similar functionality.
Consequently, employers have limited means by which to substantiate their
employees’ bullying claims that trigger the ‘bullied at work’ provisions.
The second concern is that the law is unsettled and will turn on the facts of each
case. The full bench acknowledged that their decision about bullying while at work in
the context of social media might lead to some ‘arbitrary results.’315 The concept of
being ‘at work’ encompasses both the performance of work (at any time or location)
and when the employee is engaged in some other activity that is authorised, such as
social media use whilst performing work. The full bench raised uncertainty in the
scope of the provisions that applied to an individual’s post where there is no connection
with the workplace.316 For instance, a former partner (as opposed to a customer or
client) whose Facebook conduct constitutes unreasonable behaviour towards a worker
performing work might not fall within the scope of the provisions assuming that the
conduct also created a risk to health and safety.317 As the issue did not directly arise in
the matter, the full bench declined to express a concluded view. Ultimately, this case
emphasises the need for employers to take all bullying complaints seriously, regardless
315 Ibid [56]. See also Rachael Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556 whereby the act
of an employee removing a colleague from her friends list on Facebook following a workplace dispute
was unreasonable behaviour amounting to a workplace bullying. The bullying behaviour was one
allegation of 17 aggressive, belittling and excluding behaviour that left the victim unfit for work.
316 See Chapter Five for a more detailed discussion on the case law regarding a ‘connection with
work’.
317 Bowker & Other v DP World Melbourne Limited [2014] FWCFB 9227, [57].
106 Chapter 3 Corporate risk and social media
of whether the employee was performing work when the alleged bullying occurred. If
an employee’s conduct falls outside of the anti-bullying provisions, employers can
instigate disciplinary action and take steps to mitigate further harm to the targeted
employee. The decision serves as a warning for employers of the importance of
implementing a bullying and social media policy to reduce their potential for bullying
orders.
3.5.7 Corporate risk summary
Industry and employment regulators strongly encourage firms to mitigate for
social media risk or suffer the potential legal consequences. The problem for firms is
the limited guidance in how to protect key stakeholder interests against all the
possibilities of risks, the legal consequences, and how these may affect corporate
reputation. The advent of industry regulators introducing social media best practice
guidelines for firms to protect investor and consumer interests have effectively forced
corporations to monitor their online brand whether they engage in social media or not.
One way employers can mitigate for employee risk on social media, is to set standards
of personal behaviour through internal regulation in the form of organisational social
media policies. While social media policies might serve legitimate business interests
by mitigating some business risks, the same policies might also undermine (perhaps
unintentionally) employees’ personal autonomy interests on social media. Formal
rules that dictate behavioural standards to counter all types of risk might also impede
an individual’s ideal to self-rule and the way in which they choose to interact with their
audiences on social media.
Chapter 3 Corporate risk and social media 107
Figure 3.1. Corporate Obligations in Protecting Stakeholder Interests
3.5.8 Why personal autonomy matters
Individual autonomy is an entitlement or ideal to self-rule that is valuable for
choice and a sense of self and identity. Personal autonomy is a sense of self and persona
that self-rule when they are not under the control of others.318 Self-government is a
form of personal empowerment over one’s life where the basis of this empowerment
is located in social space.319 The social space a person inhabits with their inner life –
and vice versa – is a link that embodies their personal identity.320 Being in control of
one’s life establishes a sense of entitlement to position oneself in their social
318 Andrew Sneddon, Autonomy (Bloomsbury Publishing, 2013).
319 John Santiago, ‘Personal Autonomy: What’s Content Got to Do With It?’ (2005) 31(1) Social
Theory and Practice 77, 100.
320 Ibid.
108 Chapter 3 Corporate risk and social media
environment and be authorised to speak about oneself and their life. The sense of
entitlement is a general disposition of one’s personal identity.321 The idea of self-ruling
in the context of personal autonomy is distinguishable from work autonomy where
employees are not free from any form of control. This is because the degree of
autonomy to exercise control and influence over work activities lies in the way in
which work is organised and the extent and forms in which it is controlled.322 An
autonomous person has personal empowerment by having control over one’s life,323
including the autonomy of choice and self-shaping. Autonomy of choice is choice that
is under control of the self; while self-shaping is the capacity for autonomous choice
that is deployed towards one’s own identity.324 Without autonomy, we would be unable
to shape our lives in the way we see fit.325
Some individuals value personal autonomy as a constraint on their choices or as
a goal. To value personal autonomy as a goal is to increase the amount of something
or protection of something against loss. In contrast, to value personal autonomy as a
constraint or limit on behaviour is to recognise it as a legitimate parameter that
structures the appropriate ways in which we behave without insisting on its
promotion.326 In the context of this thesis, personal autonomy is valued as a goal
because of the way in which actors, including employers and the law, can do more to
protect and preserve personal autonomy interests on social media.327 The challenge for
employers is to enforce social media rules that strike a balance in mitigating for risk
and, at the same time, maintain an individual’s personal autonomy interests.
321 Ibid.
322 Helena Lopes, Teresa Calapez and Diniz Lopes, ‘The Determinants of Work Autonomy and
Employee Involvement: A Multilevel Analysis’ [2015] Economic and Industrial Democracy 4.
323 Santiago, above n 319.
324 Sneddon, above n 318.
325 Dale Dorsey, ‘Welfare, Autonomy, and the Autonomy Fallacy’ (2015) 96(2) Pacific Philosophical
Quarterly 141.
326 Sneddon, above n 318.
327 See Chapter Four for a discussion about what personal autonomy interests might be important on
social media.
Chapter 3 Corporate risk and social media 109
3.6 Regulating Personal Behaviour Through Social Media Policies
Employers can mitigate for sources of online risk by enforcing social media
policies that attempt to regulate employees personal use of social media. Policies set
the parameters for employee behaviour and expectations that are consistent with the
organisation’s culture whilst reflecting emerging societal norms.328 If an employee
breaches the policy, employers can instigate disciplinary action or, in a serious
misconduct breach, terminate the employment.329 The implementation of policies may
not protect employers from all legal liability; however, one view is that courts may
consider the absence of such a policy as evidence the employer authorised or
sanctioned the employee’s conduct.330 The Fair Work Commission and Fair Work
Ombudsman are national employment entities that assist employees and employers to
resolve their workplace disputes. The Commission, in its capacity to adjudicate
disputes in the unfair dismissal jurisdiction, has highlighted that employers with no
social media policy is ‘“not sufficient” in this electronic age.’331 However, the
Commission is yet to stipulate how an effective social media policy could effectively
balance employee/employer competing interests.
In Australia, there is a significant lack of rights-based social media guidelines to
protect users in online spaces. Australian legal practitioners advise that social media
policies should consider:
a. employee conduct and disclosure of confidential information332
328 Sanchez Abril et al., above n 15, 113-114.
329 See Chapter Four for a discussion of what legal avenues are available for employees when they
have been dismissed because of their personal social media use.
330 Anti-Discrimination Board of New South Wales, ‘Social Media, Potential and Pitfalls’ Newsletter
no 85, Spring 2012, Equal Time, 6.
331 Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444.
332 Dianne Hollyoak, ‘Sins of the Social Networker’ (2012) 32(7) Proctor 34.
110 Chapter 3 Corporate risk and social media
b. ensuring compliance with legislation in protecting the firm
against defamation, unlawful dismissal, harassment and
invasion of privacy333
c. adequate staff training and regular updating of policies334
d. investigation and disciplinary action.335
If employers do not preserve employees’ interests in the same way they protect
other stakeholder interests, mitigating for these risks could compromise individual
autonomy interests. The potential social media risks mean an imbalance exists in the
way employers prioritise risk mitigation over protecting personal interests. Some
organisations have implemented social media policies that prohibit certain online
activities in both employees’ work and personal lives to minimise the complex
consequences and legal effects, such as those shown in Figure 3.1. Whilst the scope
and content of social media policies remains unclear, best practice that enhances clarity
and certainty around personal behaviour would go some way to mitigate risk and
preserve business and employee interests. The next chapter will discuss some
examples of the ways in which some policy directives inhibit personal use of social
media that can have serious consequences for personal autonomy interests.
3.7 Conclusion
Organisational use of social media to amplify corporate brand can increase brand
value but, at the same time, employee (mis)use of social media can increase employer
risk and legal liability in various ways. In this chapter, I answered the sub-question to
research question one: What are the uses of social media for business and how can
firms mitigate for social media risk?
The ways in which employees use social media in their work or personal time
can be a windfall or source of significant risk for brands. Some employers amplify this
333 Jennifer Farrell, ‘Social Networking on Company Time: Can You Control It?’ (2011) 49(4) Law
Society Journal 52, 55.
334 James Field and John Chelliah, ‘Social-media misuse a ticking bomb for employers’ (2012) 20(7)
Human Resource Management International Digest 38.
335 Ibid.
Chapter 3 Corporate risk and social media 111
risk by blurring the boundaries between employees’ work and personal time. This is
because some organisations urge their employees to promote and ‘live the brand’
online but this practice can extend beyond the confines of work by manipulating
employee social interactions to suit their own commercial needs. An employer’s
expanded form of control over private interactions on social media can minimise
personal autonomy interests in two main ways. First, employers can prevent an
employee’s full expression of individuality and identity where individuals must
recognise the brand values as their own. Second, employees living the corporate brand
in their own time and on their personal social media accounts are likely performing
unpaid work. The consequences mean that formal rules that govern employee social
media use in this way can lead to alienation and employee resistance. A distinct lack
of adequate employer control over personal interactions to safeguard business and
stakeholder interests can also increase business risk and liability.
Employee (mis)use of social media is a source of corporate risk that raises
serious concerns for employers in protecting the firm’s proprietary interests and
reputation. Risk was defined as the ‘probability of a particular event or hazard
occurring and the consequent severity of the impact of the event.’336 The risk of an
employee’s post having a much larger audience reach than traditional face-to-face
communication can potentially damage corporate reputation and enhance employer
control over employee communications. Employers have an interest in controlling
employee speech in online spaces for two reasons. First, an employer is required to
comply with legislative requirements that protect other stakeholder interests. The
problem here is when broad prohibitions also potentially constrain employee
interactions. The second reason is when an employer is protecting the firm’s
proprietary interests. The challenge for employers in these circumstances is to strike a
delicate balance between employer control and employee trust. In mitigating for these
kinds of employee risks in online spaces, employers will need to assess their own legal
duties when considering employee sanctions in protecting their employees from harm.
Employers have a range of minimum statutory obligations and common law
duties owed to their employees. An employer is accountable both at common law and
through further statutory obligations such as Workplace Health and Safety legislation
336 Baldwin et al., above n 232.
112 Chapter 3 Corporate risk and social media
where an employee might suffer harm while performing work. An employer’s non-
compliance with the legislation may incur further liability both under the Act and be
relied upon as evidence of negligence in common law.337 Anti-bullying provisions for
example, add to employer responsibilities and liability in situations where employees
are targets of repeated threatening social media posts. The anti-bullying provisions are
a concern for employers for two main reasons. First, where the Commission finds
bullying has occurred whilst the employee was performing work, orders can mandate
that the employer undertake certain actions to prevent further bullying and report on
their progress. Second, the anti-bullying provisions expand the firm’s liability in ways
they have little control over. The premise stems from the ‘temporal connection
between the bullying conduct and whether the employee is ‘“at work”.’338 Ultimately,
employers should take all their employee bullying matters seriously because of the
potential for harm to employee wellbeing.
Employers can mitigate for sources of online risk by enforcing social media
policies that regulate employees personal use of social media. Policies set the
parameters for employee behaviour and expectations that are consistent with the
organisation’s culture whilst reflecting emerging societal norms.339 An advantage of a
social media policy is that if an employee allegedly breaches the policy, employers can
instigate disciplinary action, or, in a serious misconduct breach, terminate
employment.340 The way in which employers mitigate for various forms of social
media risk has been limited to industry and regulatory guidelines that aim to protect a
subset of stakeholders, including consumer and investor interests with little guidance
in how to protect employee’s personal autonomy interests. An employer’s failure to
observe an employee’s autonomy interests in networked spaces potentially destabilises
the importance of personal autonomy for those who consider it an entitlement or ideal
to self-rule. I propose a better way to address this complex issue is for organisations to
adopt best practice for managing social media risk by balancing control and trust that
enhances clarity and certainty around personal behaviour in online spaces.
337 Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195.
338 Bowker & Other v DP World Melbourne Limited [2014] FWCFB 9227, [32].
339 Sanchez Abril et al., above n 15, 113-114.
340 See Chapter Five for a discussion of what legal avenues are available for employees when they
have been dismissed because of their personal social media use.
Chapter 4 Social media policies and the impact on personal autonomy interests 113
Chapter 4 Social media policies and the
impact on personal autonomy
interests
4.1 Introduction
Social media is a contested space that presents complex challenges for employers
in attempting to regulate personal behaviour. Chapter 2 outlined a way in which a
subset of users could actively manage their identities and choose to separate online
audiences that was different from audience segregation in the physical space. This
chapter explained how boundary management helps us to understand why employer
practices that lead to context collapse are dangerous for personal autonomy interests.
Employees have the ability to choose from a range of options in how they might
perform an identity or version of themselves in collapsed contexts where audiences
merge into one plane. Employees can strategically navigate their online personal and
professional personas in ways that maintain control and user autonomy through
boundary management strategies. Chapter 3 highlighted how employee social media
use can increase engagement with customers, but at the same time has the potential to
increase organisational risk and legal liability in ways that can harm business interests.
A significant challenge for employers is balancing their control over personal
communications and maintaining employee trust. One way in which employers
mitigate for social media risk is through the implementation of a social media policy.
This chapter uses a selection of social media policies to illustrate the way in
which employer practices can inhibit an employee’s personal use of social media. I
categorise policy content around: a) whether the policy expressly states it applies to
employee personal use; b) whether there is a policy directive for employees to disclose
an affiliation with their work; c) where directives might constrain employee speech
content. I conclude that some policy directives raise serious concerns for personal
autonomy interests that ultimately inhibit the way in which employees use the social
media space. My conclusion supports the second sub-question of research question
one: What kind of employee interests need protecting on social media?
114 Chapter 4 Social media policies and the impact on personal autonomy interests
4.2 Policy Directives can Inhibit Personal Use of Social Media
4.2.1 Selection of social media policies
This section examines some examples of directives extracted from
organisational social media policies. The social media policies provide illustrative
examples of directives that can potentially blur employees personal and work domains.
These directives contextualise the analysis in the thesis rather than present a
representative sample of policy directives. My analysis considered policy content with
the objective to determine nuances of employer control over personal interactions and
the way in which this control might affect users’ personal autonomy interests. I
selected ten policies after conducting an online search by typing in ‘social media
policies’. A website called ‘Social Media Policy Database’341 contained social media
policies of government, not-for-profit and corporate entities. My search was restricted
to large companies that had a connection to Australia or operated within Australia. I
selected policies from large corporate entities because they were more likely to have a
public social media policy than smaller - to medium-sized businesses. Smaller firms
may also use a large corporation’s social media policy as a template to draft their own.
Corporate social media policies were chosen from a sample within an Australian social
media training website called ‘Net:101’342 with a view to capture a range of different
types of Australian entities. I also selected several corporate and governmental social
media policies in video format hosted on YouTube. I selected social media policies
that contained directives that could potentially blur employees’ personal and work
domains and directives that may present significant problems for employees’
autonomy interests in these spaces.
341 A social media governance platform hosted by Chris Boudreaux, a Digital Strategy executive,
author, previous digital strategist for Accenture and thought leader for SocialMediaGovernance.com.
See Chris Boudreaux, ‘Social Media Policy Database’ Social Media Governance, (online) (18 August
2016) <http://socialmediagovernance.com/policies/>.
342 Net:101 is an Australian digital marketing firm that offers social media training and resources for
business. A sample of social media policies were located in their online resources tab.
Chapter 4 Social media policies and the impact on personal autonomy interests 115
4.2.2 Restrictive directives facilitate blurred boundaries
Some organisations adopt a patchwork approach in their efforts to regulate
employee behaviour that can facilitate further blurring of personal and work
boundaries. This was evident in example policies where some policy directives were
unclear as to whether they applied to both an employee’s work and personal life, whilst
other policies were more definitive as to their application. For example, the Coca-Cola
policy applies to ‘both personally as well as when you are acting in an official capacity
on behalf of the company.’343 Similarly, La Trobe University’s policy states the
guidelines are ‘standards for personal and professional use of social media.’344 The
Australian Broadcasting Commission (ABC) separates the work and private domains
by having two guidance notes: one for operating official social media accounts, and
the other for personal use.345 However, some policies did not explicitly state that it
applied to an employee’s personal use. Some policies had restrictive directives that
neglected to outline the extent to which the policy might affect an employee’s personal
life, including their online identity and what they choose to post online.
The Nordstrom policy is remarkable in this context of blurred boundaries for two
reasons. First, Nordstrom’s approach in regulating private online behaviour is
particularly vague by virtue of, ‘Note: Please talk with your manager before using
these tools during non-work hours.’346 By Nordstrom not committing in writing that
the policy applies to an employee’s private life only serves to enhance employee
ambiguity and uncertainty. A lack of clear instructions for employee personal use of
social media enhances employee/employer tensions that can lead to conflict. As
explained in Chapter 2, the permeability of an individual’s boundary is the degree to
which ‘elements from other domains may enter’, while flexibility is ‘the extent to
which an individual’s boundary may contract or expand depending on the demands of
343 See Appendix D Coca Cola Social Media Policy.
344 See Appendix G La Trobe University Social Media Policy.
345 See Appendix B Australian Broadcasting Commission Social Media Policy for Work and Private
Use.
346 See Appendix H Nordstrom Social Media Policy.
116 Chapter 4 Social media policies and the impact on personal autonomy interests
one domain or the other.’347 The literature suggests that permeability of an individual’s
boundary can lead to role blurring that potentially increases inter-role conflict because
individuals are attending to two domains with their separate norms and expectations
simultaneously.348 I argue that a distinct lack of boundary permeability in terms of an
employer setting expectations for employees’ personal use of social media can also
increase conflict. Individuals may manage their boundaries in line with their personal
values, preferences and needs, provided their organisations are supportive of their
work-life boundary management choices.349 Employees’ personal values and needs
will likely conflict with the firm’s expectations if the firm neglects to communicate to
employees what these expectations involve. The Nordstrom policy defers to lower-
level managers to provide guidance on personal online behaviour. The main concern
is, without corporate standards, employee guidance may be inconsistent from one
manager to another.
Second, Nordstrom’s policy in relation to commenting on other fashion or
product labels might restrict employees’ personal speech interests. For example, the
policy states: ‘blogging, posting or chatting about a product or fashion related to a
direct competitor, could be considered a conflict of interest.’350 This broad and
ambiguous directive requires further detail about the way in which an employee’s
blogging, posting or chatting about a direct competitor might harm the employment
relationship or damages the firm’s interests.351 A catch-all directive that captures all
comments made on employees’ personal accounts about any product or fashion that is
not Nordstrom’s product may harm personal speech interests.
In addition to problems caused by blurred boundaries, policy directives can
constrain users’ identities and/or restrict the content of what users talk about online.
The next section discusses policy directives that potentially constrain users’ online
347 Hall and Richter, above n 112.
348 Ibid 217.
349 Kossek and Lautsch, above n 120.
350 See Appendix H Nordstrom Social Media Policy.
351 For example, Rose v Telstra [1998] AIRC1592 an employee’s actions likely damages the
employment relationship or causes the business damage. See also Seafolly Pty Ltd v Madden [2012]
FCA 1346 where comments about a competitor’s swimwear can be misleading.
Chapter 4 Social media policies and the impact on personal autonomy interests 117
identities and outlines ways in which these may seriously affect personal identity,
participation, and autonomy interests in speech.
4.3 Anonymity and Pseudonymity sanctions
Some policy directives prohibit online anonymity and pseudonymity that
potentially inhibits an employee’s social media use by constraining a user’s identity
and their full participation on social media. Some organisations dictate their
employees’ personal interactions on social media irrespective of whether the
comments are company-related. This is evident in policies that prohibit employees
using anonymous or false names for work or private use. Some policies dictate that
employees use their real identities and link that identity with their work on personal
accounts. For example, the 2 Sticks Digital Marketing policy does not expressly state
the policy relates to personal use but cautions employees against posting anonymously
or using false names: ‘Do not blog anonymously, using pseudonyms or false names.
We believe in transparency and honesty.’352 While the directive might apply to those
employees who blog and represent the firm in an official capacity, an employee may
infer the pseudonymous/anonymous restriction also applies to their personal blogging,
given the absence of the policy’s application to personal blogging activity. The Adidas
policy cautions employees against posting anonymously, even hinting that some
platforms do not truly allow for anonymous postings; for example, ‘anonymous
postings on Wikipedia can be traced back to the company.’353
Porter Novelli’s policy informs their employees about the overlap of work and
personal boundaries. The policy guides employee personal use by cautioning their
employees against their use of anonymous and pseudonymous interactions: ‘there is
no longer a clear boundary between your personal life and your work life…Write as
though everyone knows who you are.’354 The ABC policy warns members that their
anonymous or pseudonymous account could impact their job: ‘Individual members of
staff establishing personal anonymous, pseudonymous, satirical or face accounts are
352 See Appendix A 2 Sticks Digital Marketing Social Media Policy.
353 See Appendix C Adidas Social Media Policy.
354 See Appendix I Peter Novelli Social Media Policy.
118 Chapter 4 Social media policies and the impact on personal autonomy interests
to consider how this might affect your role at the ABC before embarking on this
course, whatever your motivation, should your real identity become known.’355 The
anonymity/pseudonymity directives in these policies are problematic for personal
autonomy because they potentially inhibit an employee’s ability to contribute to and
participate in public debate. There are sound reasons why an individual might choose
to use a pseudonym or ‘handle’. For example, a pseudonym allows an individual to
contribute to public debate and reduce the risk of verbal attacks from others who
disagree with their opinion. Others can engage without the complexities of one’s real
life interfering with their message and explore the fun in being someone else or,
indeed, many other people. More importantly, a pseudonym or anonymous handle
might help distance an individual’s personal views from those of their employer or
professional role.356 In addition to some employer pseudonymity and anonymity
directives, another serious concern for personal identity and participation are policy
directives that mandate an employee’s real identity and/or work disclaimer on personal
accounts.
4.4 Mandated Work Connection Via a Work Disclaimer
Whether policies apply to personal use or not, restrictive policy directives that
require employees to affiliate with their work on their personal profiles or interactions
visibly connects the employee with their work. As discussed in social media
affordances in Chapter 2, firms that require their employees to identify themselves
online mandates the affordance of association; that is, the association between
employee and the organisation.357 Some policies explicitly or impliedly require
355 See Appendix B Australian Broadcasting Commission Social Media Policy.
356 Mark Pearson, Blogging & Tweeting without Getting Sued (Allen & Unwin, 2012) 65. Also See
Stanley Fish, ‘Anonymity and the dark side of the internet’ (January 2011)
<http://opinionator.blogs.nytimes.com/2011/01/03/anonymity-and-the-dark-side-of-the-
internet/?_r=0> where he and Martha Nussbaum counters the online anonymity argument where
anonymous bloggers shield themselves from their defamatory imputations from any responsibility in
the real world.
357 Vaast and Kaganer, above n 80, 91. The law is uncertain of the scope of this work connection. See
for example, Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, [284] where other
employees as ‘friends’ on a personal account might be a sufficient work connection.
Chapter 4 Social media policies and the impact on personal autonomy interests 119
employees to identify themselves as company employees through their use of work
disclaimers when using their personal social media accounts. Some policies require
employees to state their affiliation with the company when talking about their product,
services or endorsements. For example, Coca-Cola, Telstra, Latrobe University, Dell,
Nordstrom and Adidas policies require employees to affiliate with their work via a
work disclaimer only when social media content is ‘company-related.’ However,
‘company-related’ is broadly defined and can imply that anything an employee
comments about online could be company-related and may bring that comment within
the operation of the policy. For example, the Telstra policy ‘did not apply to
employee’s personal use of social media platforms where the employee makes no
reference to Telstra-related issues.’358 However, a further reading of the policy broadly
defines ‘Telstra-related issues’ as:
…if you make references in a personal capacity to Telstra, its people, products
or services, its competitors or other individuals or organisations when using a
social media platform.359
A literal interpretation of the clause potentially binds any number of personal
interactions to the Telstra policy. What this might mean is that employees who make
personal references online about their Telstra work colleagues – who also might be
friends or followers – or any ‘other’ individual or organisation, where ‘other’ is
undefined, potentially binds these interactions or comments to the policy. Ultimately,
courts will assess these kinds of policy directives by reference to its imputation as
understood by the ordinary person360 in the position to whom the directive relates: in
this case, how employees might likely interpret the policy directive.
358 See Appendix J Telstra Social Media Policy.
359 See Appendix J Telstra Social Media Policy.
360 For example, Pacific Carriers Ltd v BNP Paribas (2004) 208 ALR 213; 78 ALJR 1045 reaffirmed
the principle of objectivity by which the rights and liabilities of the parties to a contract are
determined. It is not the subjective beliefs or understandings of the parties about their rights and
liabilities that govern their contractual relations. What matters is what each party by words and
conduct would have led a reasonable person in the position of the other party to believe. References to
the common intention of the parties to a contract are understood as referring to what a reasonable
person would understand by the language in which the parties have expressed their agreement.
120 Chapter 4 Social media policies and the impact on personal autonomy interests
Some example policies also blur personal and work boundaries by requiring their
employees to affiliate with their work in both their work and personal life. For
example, KPMG’s policy does not expressly state whether its work affiliation applies
to an employee’s personal life although an employee can imply this from the clause:
‘always (emphasis added) disclose your affiliation with KPMG. Be clear that the views
you express are your own, not those of KPMG.’361 Similarly, in Porter Novelli’s policy
an employee might infer that what is personal can affect work. For example, the clause:
‘there is no longer a clear boundary between your personal life and your work life’;
and a prescribed work affiliation: ‘I work for Porter Novelli, a global public relations
company’.362 What these directives mean is that an employee cannot set boundaries in
managing their own personal and work-related conversations.
Some policies are more transparent in the way in which they warn their
employees about their use of disclaimers to affiliate with their work on personal
accounts. For example, the 2 Sticks Digital Marketing policy warns that a work
disclaimer will not protect an employee from disciplinary action:
Many social media users include a prominent disclaimer saying who they work for,
but that they're not speaking officially. This is good practice and is encouraged, but
don't count on it to avoid trouble - it may not have much legal effect.363
Some policies require employees to state a prescribed company disclaimer when
commenting about company-related issues in personal interactions. For example,
Adidas requires that any personal comment made in relation to Adidas-related issues
should use a disclaimer: ‘the postings on this site are my own and do not necessarily
represent the position, strategy or opinions of the Adidas group and its brands.’364
However, work affiliations through disclaimers may act to the employee’s detriment
in various ways because the Adidas reference within the disclaimer automatically
binds that individual’s interaction to Adidas.
361 See Appendix F KPMG Social Media Policy.
362 See Appendix I Peter Novelli Social Media Policy.
363 See Appendix A 2 Sticks Digital Marketing Social Media Policy. These ‘legal effects’ are further
discussed in Chapter Five.
364 See Appendix C Adidas Social Media Policy.
Chapter 4 Social media policies and the impact on personal autonomy interests 121
Policy directives that mandate employees use their real identity on social media
run contrary to how identity construction takes place in networked publics. Work
affiliations on personal accounts are particularly concerning for personal autonomy in
terms of identity preference because employees are publicly constrained to a work
persona. In Chapter 2, I explained that identity performance was different to the
physical space as platform affordances and dynamics of networked publics impact how
users present themselves in these contexts. The networking platforms, through their
architecture, can dictate how users present versions of themselves to their respective
online audiences. Social media provides the space with which users can negotiate their
online identity through the people they choose to connect with, the pictures of
themselves and friends that appear on their profiles, and through receiving comments
from other users.365
In practice, policy directives that appropriate employees’ work identities on
personal social media accounts in this way are unachievable because one cannot
logically exist if they are to present as entirely transparent and business-oriented.366
This is because work and life domains interact and are ‘dynamic in nature.’367 Conflict
can arise when an employee expresses their real personality through their comments
and interactions that can conflict with their work identity.368 The policy directives that
blur work and personal domains can affect users’ abilities in making sound choices for
managing their own personal and professional boundaries.
4.4.1 Restrictive directives hinder boundary management strategies
Policy directives that mandate employees affiliate with their work via a
disclaimer dominates work personas over all other personas. Employees using their
real name and affiliating with their work on personal accounts forces them to undertake
considerable effort to minimise blurring of their work and personal boundaries.
365 Mendelson and Papacharissi, above n 163, 260.
366 Marwick, above n 91, 199. Marwick acknowledged that blending the two required a great deal of
effort.
367 Rhemus Ilies et al., above n 92.
368 See Chapter Five for a discussion on the potential legal impacts of work affiliations via work
disclaimers on personal profiles.
122 Chapter 4 Social media policies and the impact on personal autonomy interests
Chapter 2 explained how users interacting with their online audiences and performing
identities online are different from how these interactions occur in the physical space
or third places such as cafes and bars. This is because networked publics collapse
audiences and remove the sanctity of third places. When users choose to brand
different versions of self in the same space they can blur their professional and personal
identities if they do not undertake the work required to manage these domains. The
important issue here is that, on social media, users who are active in managing their
personal and professional boundaries have the ability to make their own choices in the
way in which they manage their personal and professional boundaries and how they
wish their online audience to perceive them. Online boundary management helps us to
understand why employer practices – in this case, restrictive directives that lead to
context collapse – are dangerous for personal autonomy.
Online boundary management, explained in Chapter 2, provided a guide for a
subset of users who may want to actively manage their identities. User autonomy is
central to one’s ability to manage their boundaries in ways that traditional boundary
management of the physical space could not. This is because, in traditional boundary
methods of audience segmentation and integration, the extent of employer control
dictated employees’ boundary flexibility. In contrast, online boundary management
combines traditional segmentation and integration with self-evaluation preferences.
Users can choose to present themselves in ways that self-enhance – presenting oneself
in a positive and socially desirable manner – or self-verify – to behave in a manner
that confirms their own positive or negative self-views – their existing views.369 The
difference is online users have a greater ability to choose from a menu of different
boundary management behaviours when managing their personal and professional
audiences. Online boundary theory explains that by combining preferences of
integration or segmentation with self-verification or self-enhancement, users have a
range of different behaviours and consequences from which to choose. See Figure 2.3
Online boundary management drivers, behaviours and consequences in Chapter 2. If
a user tailors the communication for a specific audience, the less likely the user will
offend members of that audience.
369 Ollier-Malaterre et al., above n 57, 650.
Chapter 4 Social media policies and the impact on personal autonomy interests 123
4.4.2 Restrictive policy directives as a form of organisational control
Forms of organisational control can limit an employee’s ability to select their
own boundary management strategies. One example of organisational control is the
effect of employer directives through organisational policies on employee boundary
control. Employers penetrating individual non-work boundaries can be a form of
organisational control that may not support individual boundary management choices.
Some of the example policy directives deprive employees of role identity and
boundary management control. This is because restrictive policies that mandate
employees’ real identity on their personal accounts limit the ability to manage their
boundary preferences. Employees cannot employ ‘segmentation’ boundary strategies
where policy directives constrain an employee to one real identity. In contrast, an
employee who is not subject of such constraints may have multiple accounts or online
identities and is free to segment audiences as they see fit. In restraining an employee’s
identity in this way, employer hegemony prevails over individual boundary
management processes because employers essentially force employees into
‘integration’ boundary strategies. The outcome is the segmentation column now
becomes void from the boundary behaviour matrix as shown in Figure 4.1. Restrictive
directives limits user boundary management preferences.
Figure 4.1. Restrictive directives limits user boundary management preferences
124 Chapter 4 Social media policies and the impact on personal autonomy interests
Restrictive directives have the capacity to limit an employee’s ability to make
sound choices for themselves in how they wish to manage their online audiences.
Policy directives that demand an integration boundary management process by
requiring their employee’s real name and appropriating their professional or work
persona on personal accounts, offers that employee little choice in how their audiences
perceive them. A serious consequence is that employees cannot employ their own
boundary management strategies across their professional and personal identities.
Socially engaged employees may undertake considerable boundary work and self-
censoring of their speech to avoid further blurring of work/personal boundaries.
An employee’s compliance with a work affiliation directive integrates their
personal and professional audiences that can harm autonomy interests of participation
and speech. The integration column depicts either an ‘Open boundary management
behaviours’ or ‘Content boundary management behaviours’. See Figure 4.1.
Restrictive directives limits user boundary management preferences. According to
Ollier-Malaterre et al., behaviours associated with open boundary management include
users disclosing positive and negative information in a professional and personal
domain.370 This raises the issue if professional contacts view an employee’s personal
posts negatively, whereby the employee’s intention was that their personal audience
view the post. On the other hand, content boundary management based on self-
enhancement motives induces the individual to undertake considerable work to present
themselves to their audience as professional and keeping postings uncontroversial.371
The problem for employees integrating personal and professional contacts is that it
requires them to engage in considerable ongoing work to avoid potential mismatches
between their personal beliefs and work norms.372 Keeping their postings or
interactions uncontroversial means employees will refrain from posting about politics,
370 Ibid 653. The study showed that open boundary behaviours are likely to decrease average respect
and undermine average liking among one’s professional contacts.
371 Ibid. The study showed that content boundary management behaviours are likely to increase
average respect and liking among one’s professional contacts.
372 Marwick, above n 91.
Chapter 4 Social media policies and the impact on personal autonomy interests 125
religion or sexual orientation – a consequence that can seriously undermine speech
interests and overall online participation.
A social media policy that forbids employees from using pseudonymous or
anonymous accounts or requires them to use their real names and disclose their work
affiliation places all the employees’ online interactions and conversations within the
context (and control) of work. These constraints can escalate personal autonomy
concerns because the employee’s professional work persona dominates over all other
personas. It also enhances context collapse by a forced merging of identities in social
and professional contexts. This makes the individual unable to differentiate self-
presentation online.373
According to Ollier-Malaterre et al., employees will inevitably encounter
collisions of their professional and private identities online. They contend that
employees need online boundary management capabilities to avoid accidental
disclosure of inappropriate content to professional contacts.374 One way organisations
can help, rather than hinder, employees attain these capabilities is through
implementing policies that assist employees to manage their boundaries, particularly
with professional contacts, as well as provide training and support.375 There is a real
risk to personal autonomy if employers do not refrain from sabotaging their
employees’ boundary management capabilities. These kinds of directives that
appropriate an employee’s identity can also jeopardise an employee’s autonomy in
their own self-promotion and entrepreneurial aspirations.
4.4.3 Participation through self-branding and risk
Employers that enlist their employees work identities as brand advocates,
irrespective of employee wishes, are doing so to the detriment of employee
individuality and own self-branding strategies. Policy directives that mandate a work
self can facilitate a form of ‘disconnective practice – the ruling out of certain people
373 Marwick and boyd, above n 83.
374 Ollier-Malaterre et al., above n 57, 659.
375 Ibid 664.
126 Chapter 4 Social media policies and the impact on personal autonomy interests
participating’376 in how employees socially engage with networked audiences. An
employee’s real identity that connects their work with their personal accounts situates
all their interactions within the commercial marketplace. Forming this visible
connection can prevent full expression of individuality, as individuals must recognise
the brand values as their own.377 One consequence is that restrictive directives strip
away one’s persona as a saleable commodity outside of their regular work. In terms of
one’s future employability prospects, there is now a shared employer/employee
expectation that employees are transparent for when, where and how they should
manage information about themselves when curating online information in support of
their own career goals.378 Employees — whether actively seeking jobs or not — are
expected to manage self- and other-generated digital information within and across
times, contexts, and roles not conventionally considered for career advancement.379
Workers are likely to have a career advantage to create, curate, and manage their
information online, potentially limiting their identities, roles, and contexts given a
platform’s invisible employment audiences.380 Whilst an individual has personal
autonomy in their own self-promotion, restrictive policy directives have the potential
to appropriate an employee’s digital identity in support of corporate interests.
Restrictive policy directives that usurp user identity promote a work-targeted self-
presentation and deny users of any privacy, authenticity or other entrepreneurial self-
presentation.
4.4.4 Restrictive directives compromise employee privacy
Restrictive directives that limit users’ identity to work personas undermine
employees’ conceptions of privacy, entitlement to a private life, and informal use of
376 Ben Light, Disconnecting with Social Networking Sites (Palgrave Macmillan, 2014) 94. Light’s
research focusses on organisational policies that preclude employees’ discussion of work via SNS.
377 Karreman and Rylander, above n 221.
378 Brenda Berkelaar, ‘Cybervetting, Online Information, and Personnel Selection: New Transparency
Expectations and the Emergence of a Digital Social Contract’ [2014] Management Communication
Quarterly 20. Berkelaar has labelled this shift as the ‘digital social contract’.
379 Ibid.
380 Ibid.
Chapter 4 Social media policies and the impact on personal autonomy interests 127
social media. Research highlighted in Chapter 2 described reasons why users
maintained their online privacy. For example, users can omit details of their work to
make it more difficult for colleagues to find them on Facebook; users’ real personality
often conflicts with their work identity; users saw Facebook as a buffer between the
working space during the day and personal space in private life; and other users
considered Facebook a third place to unwind with friends.381 Restrictive directions
hinder a user’s capacity to interact as private citizens in online public arenas.382
Collectively, these are all serious concerns for the ways in which restrictive policy
directives can affect personal autonomy in terms of users’ identity preference and full
participation on social media. If regulators or courts do not question the legitimacy or
scrutinise policy directives, restrictive directives may go unchecked and become the
accepted norm.
4.4.5 Restricting identity risks becoming the accepted work standard
Employer practices that enforce standards in how employees are to identify in
networked platforms adversely affect personal autonomy interests in ways that courts
and regulators can too easily accept without proper scrutiny. Employers are emerging
as the ‘enforcers of social conformity’383 and set their own standards of online
behaviour to serves the firm’s needs. As the research revealed, these standards may
interfere with the way in which users manage their identities and audiences in
networked contexts. Some of the sampled policies illustrate how identity and
individual value are defined by organisational membership where personal identity is
organisation-centric and either creates or diminishes organisational value or hurts the
organisation.384 See Table 4.1. Social media policy blurring of private and work
boundaries. Social media policies that potentially constrain an employee’s personal
autonomy to manage their own identities and audiences and the flow-on effects that
influence one’s overall participation in networked contexts can become acceptable
381 Owen, above n 161, 166.
382 Whelan et al., above n 68.
383 Blackford, above n 127.
384 Stohl et al., above n 60.
128 Chapter 4 Social media policies and the impact on personal autonomy interests
organisational norms. As work and home cultures develop norms and as boundary
norms gather strength, they can easily become ‘institutionalized and difficult to
change’.385
Employees who have limited exposure to social media and do not yet have
established perceptions of social media affordances would likely shape their
perception of their organisation’s social media policy in a restrictive way.386 This is an
important issue for the employee and employer as the justification for imposing
restrictive policy directives appear to favour organisational interests without proper
consideration of how the policy affects an employee’s personal autonomy interests.
For those employees who are familiar with the networked nature of social media,
affiliating with their work on their personal profile or refraining from the use of
pseudonymous accounts can affect their participation in building their persona387 in
their various online communities. When work facilitated by technology intersects with
all aspects of life, employees may find it difficult to separate their identity as employee
from that of various other roles played in their private and social life.
Restrictive policy directives that forbid anonymity or pseudonymity and
mandate work affiliations on personal accounts hinder, rather than empower users to
exercise their personal autonomy. Online boundary management demonstrates how
employer practices that restricted user identity are dangerous for employee autonomy
because they limited employees’ ability to make sound choices in how they manage
their personal and professional audiences. The requirement to perform a set identity
can influence how employees refrain from use or only partially engage in social media
use388 that can undermine the use of technology for social purposes.389 In addition to
employer restrictions on employee identity and participation, including audience
management, some of the select policy directives threatened important speech interests
that are a core part of personal autonomy.
385 Kreiner et al., above n 124, 706.
386 Vaast and Kaganer, above n 80, 95.
387 Barbour et al., above n 172.
388 Light, above n 376.
389 Judy Wacjman, Michael Bittman and Judith Brown, ‘Families without Borders: Mobile Phones,
Connectedness and Work-Home Divisions’ (2008) 42(4) Sociology 635, 640.
Chapter 4 Social media policies and the impact on personal autonomy interests 129
Table 4.1. Social media policy blurring of private and work boundaries
ORGANISATION POLICY APPLIES TO PERSONAL USE
(Temporal)
DISCLOSE AFFILIATION WITH WORK
(Permeable boundary)
Latrobe University
(Australian tertiary
institution)
Yes
Outlines standards for personal and
professional use of social media e.g.
personally liable for content and comments
you publish: ‘if you are commenting on La
Trobe university related matters in your own
time’
Yes, if it relates to university matters: ‘if you post directly
about La Trobe in your personal time, please identify your
association with La Trobe and mention you are sharing your
personal views and opinions, not representing the
organisation’
Dell
(Global computer
company operating in
Australia)
Not expressly stated
Refers to ‘Dell Code of Conduct’
Yes: ‘When you talk about Dell on social media, you should
disclose that you work for Dell’
ABC - Australian
Broadcasting
Commission
(Australian National
Broadcaster)
Yes
Separate personal use guidelines
‘Four standards of conduct
• Do not mix the professional and the
personal in ways likely to bring the ABC
into disrepute
Yes but leaves it to employee discretion and depends on the
platform, ie LinkedIn.
‘if it compromises your integrity to omit your employment
from your profile or bio then we strongly recommend that you
include it’
130 Chapter 4 Social media policies and the impact on personal autonomy interests
ORGANISATION POLICY APPLIES TO PERSONAL USE
(Temporal)
DISCLOSE AFFILIATION WITH WORK
(Permeable boundary)
• Do not undermine your effectiveness at
work
• Do not imply ABC endorsement of your
personal views
• Do not disclose confidential information
obtained through work’
‘Individual members of staff establishing
personal anonymous, pseudonymous, satirical
or face accounts are to consider how this
might affect your role at the ABC before
embarking on this course, whatever your
motivation, should your real identity become
known.’
‘advisable that you also add a statement to the effect that any
opinions are all your own and not those of the organisation.
This will make clear that you are not speaking on behalf of the
Corporation.’
KPMG
(Global audit, tax and
professional services
company)
Not expressly stated Yes
‘always disclose your affiliation with KPMG’
‘Be clear that the views you express are your own, not those
of KPMG’
Chapter 4 Social media policies and the impact on personal autonomy interests 131
ORGANISATION POLICY APPLIES TO PERSONAL USE
(Temporal)
DISCLOSE AFFILIATION WITH WORK
(Permeable boundary)
2 Sticks Digital
Marketing
(Marketing firm)
Not expressly stated
Advised against anonymous accounts or
false names: ‘Do not blog anonymously,
using pseudonyms or false names. We believe
in transparency and honesty’
Yes, but warns it may not protect employee
‘Many social media users include a prominent disclaimer
saying who they work for, but that they're not speaking
officially. This is good practice and is encouraged, but don't
count on it to avoid trouble - it may not have much legal
effect’
Porter Novelli PR
(A global public relations
company)
Not expressly stated
‘there is no longer a clear boundary between
your personal life and your work life’
Advised against anonymous/pseudonymous
accounts: ‘Write as though everyone knows
who you are’
Yes, an explicit statement: ‘I work for Porter Novelli, a global
public relations company’
Coca Cola
(A global beverage
company)
Yes
‘These social media principles should guide
your participation in social media, both
personally as well as when you are acting in an
official capacity on behalf of the company’
Yes
‘when you’re talking about our Company, our brands, or our
business on your personal social networks…make sure you
disclose that you are affiliated with the company’
132 Chapter 4 Social media policies and the impact on personal autonomy interests
ORGANISATION POLICY APPLIES TO PERSONAL USE
(Temporal)
DISCLOSE AFFILIATION WITH WORK
(Permeable boundary)
Telstra
(Australian
telecommunications
authority)
No
‘does not apply to employee’s personal use of
social media platforms where the employee
makes no reference to Telstra-related issues’
Can be implied due to broad ‘Telstra-related
issues’
‘if you make references in a personal capacity
to Telstra, its people, products or services, its
competitors or other individuals or
organisations when using a social media
platform’
Yes, if it relates to Telstra-related issues: ‘In relation to
Telstra-related issues … It is important that readers do not
misconstrue your personal comments as representing an
official Telstra position and that you apply the 3R’s in
accordance with your activity’
3R’s include Representation, Responsibility, Respect
‘you be clear about who you are representing’
Nordstrom
(Online goods retailer)
Not expressly stated
‘Note: Please talk with your manager before
using these tools during non-work hours’
‘blogging, posting or chatting about product or
fashion related to a direct competitor could be
considered a conflict of interest’
Yes, whereby endorsers are to disclose the connection with
Nordstrom’
Chapter 4 Social media policies and the impact on personal autonomy interests 133
ORGANISATION POLICY APPLIES TO PERSONAL USE
(Temporal)
DISCLOSE AFFILIATION WITH WORK
(Permeable boundary)
Adidas
(Global sporting
company)
Not expressly stated
Advised against anonymous posts
‘anonymous postings on Wikipedia can be
traced back to the company’
‘Be aware that others will associate you with
your employer when you identify yourself as
such. Please ensure that your Facebook,
LinkedIn, Xing or Myspace profile and related
content is consistent with how you wish to
present yourself with clients and colleagues’
Yes, only if Adidas-related issues: ‘Use a disclaimer like “The
postings on this site are my own and do not necessarily
represent the position, strategy or opinions of the Adidas
group and its brands”’
134 Chapter 4 Social media policies and the impact on personal autonomy interests
4.5 Restricted Work Speech
Some of the example policy directives potentially limit employee speech that
relates to their work. Employer control over employee speech destabilises the idea of
an individual’s autonomy to self-rule in social spaces.390 For example, La Trobe, Peter
Novelli and Adidas social media policies all direct that their employees will not post
any content that is ‘inflammatory, or… could bring the company into disrepute or
…comment on any work-related matters.’391 See Table 4.2. Restrictive directives on
work speech.. These directives infer that employees cannot comment or post about
work issues that reflect poorly or negatively on the firm. These directives are
inconsistent with law that supports employees airing their opinions about their
treatment at work. For example, in Vosper v Solibrooke392an employee’s private
Facebook messages about her employer’s treatment of her at work was insufficient
grounds for dismissal. The employer claimed, amongst other performance issues, that
the employee’s Facebook conversation had constituted misconduct. The Fair Work
Commission held that there was no valid reason for the employee’s dismissal because
her comments were not derogatory or offensive and there was no publication of any
confidential business information.393 The case was important because the Commission
affirmed that employees could in fact talk about their work with others.
An employee has the right to complain about their employment rights and their
treatment at work. We do not live in a society where employees are prohibited from
discussing their employment status or their treatment at work with others.394
These kinds of policy directives are unenforceable against an employee who uses
inflammatory language in a personal context because of certain general protections
390 Sneddon, above n 318.
391 See Appendix G La Trobe Social Media Policy; Appendix I Peter Novelli Social Media Policy;
Appendix C Adidas Social Media Policy.
392 See Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168.
393 Ibid [20].
394 Ibid.
Chapter 4 Social media policies and the impact on personal autonomy interests 135
that exist in employment law.395 The Nordstrom policy directs employees to ‘always
treat others… in a positive manner’;396 however, employees posting about their
unfavourable work conditions with other employees who are members of their online
audience may not be ‘positive’. Policy directives that constrain autonomy in speech
may influence users to shy away from use where that use is part of collective action
regarding work conditions. Chapter 5 further addresses political or trade union397
speech that is protected at law.
Table 4.2. Restrictive directives on work speech.
Organisation Restrictive directive
La Trobe
‘Do not post any content that is inflammatory…’
Nordstrom ‘Always treat others (including customers, non-customers,
shareholders, co-workers, vendors and competitors) in a
…positive manner’
Peter Novelli
‘You must do nothing to bring the company into disrepute’
Adidas
‘Don’t comment on work-related legal matters’
4.6 Conclusion
Some example policy directives showed nuances of new social media
governance mechanisms that are reshaping the boundaries between personal and work
spaces. Employers are at risk of setting restrictive norms of personal behaviour in
online spaces that can adversely affect how employees identify, participate, and
manage boundaries and converse with their online communities. I used a small
selection of social media policies as examples to illustrate serious threats to personal
395 See Chapter Five regarding a discussion of employee general protections in the Fair Work Act
2009 (Cth) ss 351, 772(1)(f) including trade union activity and political opinion.
396 See Appendix H Nordstrom Social Media Policy.
397 Fair Work Act 2009 (Cth) ss 351, 772(1)(f), general protections of Trade Union activity amongst
others.
136 Chapter 4 Social media policies and the impact on personal autonomy interests
autonomy interests. This chapter answered the second sub-question of research
question one: What kind of employee interests need protecting on social media? I
demonstrated through example policy directives that personal autonomy interests of
online identity preference, participation and speech were at risk. I highlighted ways in
which some policies blur personal and work, as well as the restriction of speech
content, and how these issues affected an employee’s personal autonomy interests.
Some policy directives were ambiguous as to whether they applied to work and
personal use of social media that had the potential to blur an individual’s personal and
work boundaries and increase the risk of context collapse. Other policy directives were
restrictive in the way in which they limited an employee’s identity preference and what
they could talk about with their online audiences. Restrictions on identity through the
prohibition of pseudonymous or anonymous accounts and mandating employees to
affiliate with their work on personal accounts were divisive in ways that could
seriously harm personal autonomy interests.
The research revealed a real risk to personal autonomy if employers did not
refrain from sabotaging their employees’ boundary management capabilities.
Boundary management theory explained how employer practices in implementing
restrictive policy directives that effectively controlled user identity was potentially
dangerous for personal autonomy interests. By examining restrictive directives
through the lens of online boundary management theory, an employee’s ability is
impaired in the way in which they manage their own personal and professional
boundaries. Employer control over employees’ individual boundary practices
potentially hindered users’ efforts in avoiding further blurring of work/personal
boundaries and mismatches between their personal views and work norms. According
to online boundary theory, employers should instead be helping employees to manage
their personal and professional boundaries.
Policy restrictions on user identity can also have powerful consequences that
inhibit one’s social participation, entrepreneurial aspirations, or infringe privacy
preferences on networked platforms. Directives that dictate a work persona likely
constructs the user as an ‘employee’, but ignores other roles – more importantly that
Chapter 4 Social media policies and the impact on personal autonomy interests 137
of a ‘citizen or their public or political role’398 – and encourages a form of
‘disconnective practice’399 in the way in which an individual engages on social media.
Policy directives that limit an employee’s autonomy in their own self-promotion or
self-branding online can harm the employee’s career prospects given a platform’s
invisible employment audiences.400
Some policy directives illustrated prohibitions on speech that interfere with what
employees can legitimately comment about in relation to work. Policy directives that
constrain employee speech that relates to work can harm personal autonomy because
users can shy away from use even though the law supports employee opinions
regarding work conditions. There is a real risk that restrictive policy directives that
harm these kinds of personal autonomy interests and inhibits employee use of the space
will become the accepted work standard if they escape the scrutiny of regulators or the
courts.
398 Simon Dawes, ‘Privacy and the Public/private Dichotomy’ (2011) 107(1) Thesis Eleven 115, 119.
399 Light, above n 376.
400 Berkelaar, above n 378.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 139
Chapter 5 Employee legal rights:
enforceability of social media
rules and contesting dismissal
The previous chapter illustrated examples of how social media policy
directives may harm personal autonomy interests and inhibit an individual’s overall
use of the online space. The example directives highlighted the three key employee
autonomy interests most at risk: identity preference, participation and speech.
This chapter explores the ways in which employees can preserve their personal
autonomy in speech on social media. I analyse regulations and common law
obligations relating to social media instruments that regulate personal use of these
spaces. I overview the ways in which employees can challenge their dismissal that
has resulted from their personal use of social media. Employees can scrutinize their
own organisation’s social media rules or they can file an application through the Fair
Work Commission. I explain the legitimacy and enforceability of social media rules
in Australia and the limits to which the Fair Work Act 2009 (Cth) preserves personal
autonomy interests in speech.
Employees cannot rely on national regulators to advocate and protect their
individual freedoms on social media for conduct that breaches their organisation’s
social media rules. This is because, in Australia, individual freedoms of free speech
are not individual rights for which one can bring an action against another private
individual or organisation. However, other statutory provisions that protect certain
aspects of speech may provide employee protection. The problem is, courts are yet to
determine the scope of employee protections in terms of political speech and
uncertainty surrounds how these interests collide with employer interests in
protecting business reputation.
Social media policies set standards of behaviour to safeguard employer
interests. If an employee breaches the conditions, the employer can take disciplinary
action by relying on the policy and concurrent common law obligations. Social
media directives in policies that are not part of a contract bind employees in ways
that are both lawful and reasonable. Employees are not required to obey social media
140 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
policies if the employer attempts to over-reach their control by constraining one’s
personal speech beyond the law. This level of employer control unduly erodes
personal autonomy in speech and potentially breaches contract.
I conclude that the law, as it currently stands, does not adequately preserve
personal autonomy in speech. This is because the law in relation to employment and
social media is evolving and uncertain. As demonstrated in the previous chapter,
employers draft social media rules that mitigate for risk but employee statutory
protections collide in ways that undermine employer interests. I suggest that employee
involvement in policy-making would go some way to help ease these tensions.
5.1 Introduction
This chapter explores the legal ways in which employees can preserve their
personal autonomy interests on social media. I examine the ways in which employees
can legitimately challenge the enforceability of organisational social media rules and
how dismissed employees, because of their (mis)use of social media, may seek a
remedy under the Fair Work Act 2009 (Cth). First, I consider the roles of the Fair Work
Commission and Fair Work Ombudsman and how the Fair Work Commission
undertakes a reactive role in settling social media disputes in unfair dismissal
proceedings. I then outline the reasons why the Commission cannot help employees
who are seeking redress for infringement of their personal freedoms and explore ways
in which they can assist employees and employers navigate tensions that may arise in
the social media space.
Next, I emphasise that there are no guarantees of personal speech rights and the
implied Constitutional freedom of political communication for private employees is
still unsettled at law. Whilst the Commission supports organisational use of social
media policies to regulate employee behaviour during and outside work hours, the
common law sets broad limits of the extent of employer control. As employers become
more sophisticated at managing their potential social media risk, there is a strong
incentive to draft social media policies that prioritise business interests401 without
401 Pearson v Linfox Australia Pty Ltd [2014] FWC 446, [47] whereby the Commission supported a
policy that protects the reputation and security of business and its application should not be
constrained to work hours only.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 141
providing substantive protections for the personal interests of employees. I discuss the
reasons why uncertainty in the law is a problem for employees and why clarity in the
law would benefit employees.
In exploring ways to preserve personal autonomy on social media, I analyse the
legitimacy of social media rules and the ways in which employers could enforce these
rules. Employers have legal obligations when drafting social media rules as contractual
terms or stand-alone policies. Social media policies set standards of behaviour to
safeguard employer interests. The common law requires policies to contain lawful and
reasonable directions. If an employee breaches a policy directive, the employer can
take disciplinary action by relying on the policy and concurrent common law
obligations. I discover various ways in which examples of policy directives expose
weaknesses in the limits of lawful and reasonable managerial authority and how
employees’ personal autonomy interests are in jeopardy in online spaces. Some
contractual principles allow employees to disregard potentially unlawful and
unreasonable directions that constitute an employer’s breach of contract.
I then evaluate provisions in the Fair Work Act 2009 (Cth) that can help
employees contest their dismissal because of the alleged breach of their employer’s
social media policy. Unfair dismissal applications can provide employees with a
remedy in terms of substantive valid reasons and procedural fairness processes. An
employer’s valid reason for dismissal may not always justify an employee’s dismissal
for breach of a policy. I outline the kinds of individual circumstances that would
mitigate against employee dismissal. The Act also provides employee protections that
are designed to offer a safe haven for employees against employer adverse action that
often lead to the employee’s dismissal. These statutory protections can potentially
circumvent the lack of individual freedoms that aim to protect certain kinds of
employee speech, including one’s political view broadcasted on social media. I discuss
case studies that have involved disputes arising from employee political speech on
social media, their connection with work, and why the law is undeveloped to deal with
these issues.
I conclude that current legal doctrine relating to employee rights and freedoms,
employment law, and the law surrounding contractual employment agreements does
not adequately preserve personal autonomy interests on social media. An imbalance
exists when employers attempt to enforce policies that over-reach their control over
142 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
employees’ personal speech and interactions on social media. I outline the weaknesses
in the law and suggest limits to the way in which employers can lawfully protect their
brand reputation. I foreshadow a way in which employers and employees can minimise
harsh dismissals and the enforceability of unlawful and unreasonable directions that
preserve personal autonomy in speech.
The analysis in this chapter will answer the first part of the research question:
How does current legal doctrine and employment contractual agreements balance the
competing interests of employee and employer? I examine employee legal rights and
freedoms that exist in the employment relationship and how these are resolved to
answer the second sub-question: What employee protections and obligations exist at
law and to what extent does the law require employees to comply with social media
rules?
5.2 Fair Work Commission’s Role in Social Media Disputes
There are limits to which the Fair Work Commission and Fair Work
Ombudsman can assist parties to resolve disputes that arise from an employee’s
personal social media use. The Commission fulfils more of a reactive role when it
comes to employee social media disputes. The Commission’s role includes
adjudication of certain forms of employee speech freedoms. The Ombudsman, on the
other hand, can enforce Fair Work minimum standards. The Fair Work Act 2009 (Cth)
sets out a range of minimum standards with other minimum standards found in
contracts, policies, awards and enterprise agreements. In terms of the limited scope of
this thesis, the minimum standards addressed in the Fair Work Act 2009 (Cth) and at
common law do not specifically address any social media standards. The Fair Work
Act 2009 (Cth) is the primary statute that governs most Australian employees of
constitutional corporations and some public sector employees.402 The Act establishes
402 Mark Irving, The Contract of Employment (LexisNexis Butterworths, 2012) 263, whereby 85-90%
of all Australian employees are covered under the Act in states such as Victoria, Australian Capital
Territory, Northern Territory, federal public sector and Tasmanian local government and all private
sector employment except for Western Australia.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 143
10 National Employment Standards (NES)403 that supplement employment conditions
in contracts, modern awards and enterprise agreements.404 The Fair Work Commission
and the Ombudsman perform various statutory duties under the Act, however, the
Ombudsman has minimal input in helping employers shape policies that preserve
personal autonomy speech interests on social media.
5.2.1 Fair Work Ombudsman’s functions
The Fair Work Ombudsman (FWO) has a broad range of responsibilities405 that
monitors compliance to the Act and minimum enforcement standards. The functions
of the FWO include the promotion of cooperative workplace relations and compliance
with the Act and Fair Work instruments.406 Included in these functions are the
provision of education, assistance and advice to employees and employers, and
producing best practice guidelines to workplace relations or workplace practices.407
The education and advisory functions form part of the preventative compliance
approach to enforcement of minimum employment standards.408 The FWO have online
tools available to allow anyone to search for awards, minimum pay rates or best
practice guidelines that specifically relate to various topics.409 While best practice
guides aim to help small businesses and employees with a range of workplace issues
to achieve a fair and more productive workplace, there is little FWO guidance with
403 Fair Work Act 2009 (Cth) Part 2-2 sets out minimum conditions covering maximum weekly hours,
flexible working arrangements, parental leave, annual leave, personal/carer’s leave, compassionate
leave, community service leave, long service leave, public holidays, notice of termination and
redundancy pay, Fair Work Information Statement for each new employee.
404 Irving, above n 402 where there are approximately 120 Modern Awards and 25 000 enterprise
agreements in Australia.
405 Fair Work Act 2009 (Cth) Part 5-2.
406 Fair Work Act 2009 (Cth) s 682(1).
407 Ibid s 682(1)(ii).
408 Breen Creighton and Andrew Stewart, Labour Law (The Federation Press, 6th ed, 2016) [7.49].
409 ‘Best Practice Guides’ Fair Work Ombudsman, (August 2016) <https://www.fairwork.gov.au/how-
we-will-help/templates-and-guides/best-practice-guides>.
144 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
respect to best practice in managing employee social media use.410 The Fair Work
Commission in the unfair dismissal jurisdiction will often adjudicate disputes that arise
from an employee’s (mis)use of social media.
5.2.2 Fair Work Commission
The Fair Work Commission is a statutory expert body that administers the Fair
Work Act 2009 (Cth)411 and, for the purpose of this thesis, has functions for the
resolution of employee unfair dismissals, general protections claims, unlawful
termination and applications for anti-bullying orders.412 The Commission has a new
function in seeking proactive forms of intervention by virtue of facilitating
negotiations, providing advice or training in relation to their promotion of cooperative
and productive workplace relations, and preventing disputes.413 The Commission also
operates as a tribunal with formal rules414 but many of the Commission’s functions are
administrative in nature that requires the Commission to accord to procedural fairness
to any parties who appear before it. The Commission may make decisions but the
general rules that apply in other civil court proceedings, do not apply in this
jurisdiction.415 A single member416 of the tribunal can make decisions except in
circumstances where the Full Bench is required, for instance with most appeals or
reviews417or other matters.418
410 Fair Work Act 2009 (Cth) ss 708-711, 714-716 sets out Fair Work Inspectors powers. Appointed
Fair Work Inspectors largely conduct inspections and follow up complaints and breaches of the Act.
411 Ibid s 4.
412 Ibid s 576. Other functions include making, reviewing and varying modern awards, overseeing
industrial action in the negotiation of enterprise agreements and disputes arising out of the National
Employment Standards (NES).
413 Ibid s 576(2)(aa).
414 Ibid s 609. See also Fair Work Commission Rules 2013.
415 Ibid s 591. For other civil proceedings, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)
apply.
416 Ibid s 612(1).
417 Ibid ss 604, 605.
418 Ibid s 615(B) where the President has the power to transfer matters from a Fair Work member to a
Full Bench, or s 615(C) from a member or Full Bench to the President. The Full Bench deal with
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 145
5.2.3 Fair Work Commission’s role in social media disputes
The Commission’s role in adjudicating social media disputes has mainly
occurred in the unfair dismissal jurisdiction. Employee dismissal is a likely outcome
of disputes that involve employee (mis)use of social media. The former employee can
make application to the unfair dismissal jurisdiction provided the employee meets
certain preliminary conditions. The Commission, until recently, viewed social media
as a public space419 and is limited in the ways in which it can resolve personal
autonomy issues that arise.
The Commission accepts that personal behaviour outside of work can harm
employer interests and can affect an individual’s employment.420 For example, in
O’Keefe v The Good Guys,421 Mr O’Keefe was an employee at the Good Guys store
when he engaged in serious misconduct. O’Keefe posted on his personal Facebook
page, ‘F**king work still haven’t managed to pay me correctly. F**king c**ts are
going down tomorrow.’422 O’Keefe’s work colleagues viewed his comments on
Facebook. O’Keefe’s comment was referring to his female operations manager who is
responsible for the payment of wages. His employer considered O’Keefe’s comments
calling the female manager a ‘c**t’ was disrespectful to her and other employees who
saw the post. Second, O’Keefe’s comment ‘c**nts are going down tomorrow’ was a
threat against her. The employer dismissed him for serious misconduct.423 Even though
the employee posted his comments outside of work hours and on his personal
applications to make a modern award, to conduct four-yearly reviews, default superannuation fund
term in s 616 and make workplace determinations under Part 2-5.
419 See Louise Thornthwaite, ‘Social Media and Work: An Emerging Privacy’ [2016] (135) Precedent
(Sydney, N.S.W.) 8, 13 whereby Thornthwaite asserts that recent Commission decisions for example,
in Fallens v Serco Australia Pty Ltd t/a Serco Acacia Prison [2015] FWC 8394 and Vosper v
Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168 can protect employee rights in
terms of privacy and work speech in online spaces.
420 Fitzgerald v Dianna Smith trading as Escape Hair Design [2010] FWA 7358, [50].
421 O’Keefe v Williams Muir’s Pty Ltd [2011] FWA 5311.
422 Ibid [15].
423 Ibid [51] where the Commission considered there was a valid reason for dismissal because of the
serious manner in which the threat was made and the words used.
146 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
Facebook account (where eleven of his work colleagues saw his comment) the
Commission found that,
The fact that the comments were made on the applicant’s home computer, out of work
hours, does not make any difference. The comments were read by work colleagues
and it was not long before Ms Taylor was advised of what had occurred…in my view,
that the separation between home and work is now less pronounced than it once used
to be.424
Similarly, the Commission in Little v Credit Corp425 further acknowledged ‘that it was
not when the comments were made which is important, but the effect and impact of
those comments on the respondent, its employees.’ The extent to which an employer
can supervise employees’ personal lives to minimise these kinds of risks in online
contexts is unclear.
Potentially, employers are always monitoring employee’s personal interactions
in some way on social media. Employees owe their employer a duty not to harm the
firm or other employees even when acting in a private capacity. Serious misconduct426
is an exceptional circumstance that can result in employee dismissal. When viewed
objectively, an employee’s off-duty conduct is likely to cause serious damage to the
relationship between employer and employee, or the conduct damages the employer’s
interests, or is incompatible with the employee’s duty as an employee.427 However, the
Commission acknowledges that employees are entitled to a ‘private life’,428 and only
in exceptional circumstances will an employer be given an extended right of
supervision over the private activities of employees.429 Social media affordances can
enhance exceptional circumstances, such that an employee’s personal conduct within
these spaces can affect all types of harm to business interests. This includes conduct
424 Ibid [43].
425 Little v Credit Corp Group Ltd [2013] FWC 9642, [75] where an employee used the handle
‘Dinosaur Wrangler’ to offend customers and new staff members.
426 O’Keefe v William Muir’s Pty Ltd [2011] FWA 5311; Pearson v Linfox Australia Pty Ltd [2014]
FWC 446; Little v Credit Corp Group Ltd [2013] FWC 9642; Fair Work Regulations 2009 (Cth) reg
1.07.
427 Rose v Telstra [1998] AIRC 1592.
428 Ibid.
429 GrainCorp Operations Ltd v Markham (2002) 120 IR 253, 267.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 147
that may harm employees as described in O’Keefe’s threatening comments about his
manager where 11 of his fellow employees could potentially view his comments.430
Whilst the employer viewed the comments on O’Keefe’s personal Facebook, any of
the 11 employees could alert the employer of the threats even though there is no
general duty imposed on employees to report the misconduct of their fellow
employees.431 Employers mitigating for such broad exceptional circumstances on
social media legitimise their supervision over personal conduct in these spaces. It
implies that employers directly or indirectly through reporting from fellow employees
are always supervising each other’s personal conduct on social media.
The Commission also appears to put the firm’s interests ahead of employee
interests. In unfair dismissal proceedings, the Commission considers criteria that
includes whether the employee’s dismissal was harsh, unjust, or unreasonable.432
When considering harshness, the Commission determines whether there is a valid
reason for dismissal, including the employee’s conduct.433 The Commission examines
whether the employee’s conduct has harmed the firm or other employees. In doing so,
the Commission neglects the issue of employee duties that requires employees to
behave in a way that does not cause the firm harm. The Commission is limited in the
way it can help employees resolve individual rights of privacy and free speech.434 This
is because these issues fall outside its functions and are constrained by the Fair Work
Act 2009 (Cth).
5.2.4 Public speech on social media
The Commission supports organisational social media policies to regulate
personal behaviour but is silent on how employers draft and administer them. The
430 O’Keefe v William Muir’s Pty Ltd [2011] FWA 5311, [16].
431 Sybron Corporation v Rochem Ltd [1984] Ch 112, 126; [1983] 2 All ER 707, 717; [1983] ICR 801,
815. See Attorney General v Guardian Newspapers (No2) [1990] 1 All ER 109, 268 where an
employee who knows or suspects wrongdoing by fellow employees will not ordinarily breach the
employee’s obligation of confidence by disclosing the wrongdoing.
432 Fair Work Act 2009 (Cth) s 387.
433 Ibid.
434 Little v Credit Corp Group Ltd [2013] FWC 9642, [31].
148 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
problem is that the Commission – in its unfair dismissal jurisdiction or in providing
advice or training in relation to the promotion of cooperative and productive workplace
relations – refrains from offering any guidance in developing a policy framing that
preserves personal autonomy interests.435 The Commission explains that disclosing
opinions online is disclosing to the ‘world at large’436 but have recently curtailed this
view in the interests of protecting employee privacy437in certain circumstances and
freedom to talk about work.438 Outside of these circumstances, social media is a public
forum that is subject to intense employer scrutiny. Both Fair Work entities offer
employers little advice or guidance as to what a social media policy contains.439 One
reason is that if an employee questions the validity of the policy, this will be resolved
through union involvement or court interpretations of implied obligations that exist in
the employment relationship. As employers become more sophisticated at managing
their potential risk, there is a strong incentive to create social media policies that
prioritise the business interests of employers440 without providing substantive
protections for employee’s personal interests. While employees and unions441 can
435 See also the Fair Work Ombudsman where there is also little guidance on social media policy. See
Fair Work Ombudsman, above n 407.
436 Little v Credit Corp Group Ltd [2013] FWC 9642, [74].
437 Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota (2014) FWC 644.
438 Fallens v Serco Australia Pty Ltd T/A Serco Acacia Prison [2015] FWC 8394.
439 Compare United States and United Kingdom jurisdictions whereby employment regulators have
contributed to social media best practice guidelines in their effort to ensure social media policies are
lawful. For example, in the United States, the National Labor Relations Board (NLRB) have issued
policy guidelines See ‘NLRB General Counsel Provides Roadmap for Handbook Policies’ NLRB
(October 2015) <http://us7.campaign-
archive2.com/?u=28b8f8709ba5b3a11354e905f&id=efaba41e92&e=95f8ac9d83>. In the United
Kingdom, the Advisory, Conciliation and Arbitration Service (ACAS) has social media best practice
guidelines on their website ‘Social Media: How to Develop Policy Guidance’ ACAS (14 July 2011) <
http://www.acas.org.uk/index.aspx?articleid=3381>.
440 Pearson v Linfox Australia Pty Ltd [2014] FWC 446, [47] whereby the Commission supported a
policy that protects the reputation and security of business and its application should not be
constrained to work hours only.
441 Patrick Stafford, ‘Commonwealth Bank social media policies raises questions over control of
employee actions online’ Smart Company (4 February 2011)
<http://www.smartcompany.com.au/legal/18502-20110204-cba-social-media-policy-raises-questions-
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 149
insist on some protection in policies, in general, employers draft their social media
policies to mitigate for risk and protect business reputation. There is no safeguard to
ensure that these policies protect employees’ personal autonomy interests. This is
likely to be increasingly problematic in the future as the importance and the ubiquitous
nature of social media continues to grow. While greater reliance on social media
policies is likely to increase certainty for employers, there is no guarantee that these
policies represent a desirable balance between employer interests and personal speech
freedoms.
5.3 Personal Speech Rights
Australian employees have limited individual speech rights when it comes to
expressing their personal views and interactions on social media. Users are
increasingly sharing their interpersonal views on social media, including their political
views, that can potentially harm their employer’s brand reputation. An individual
voicing their opinions or sharing questionable content with their online audiences can
result in disciplinary action, including termination of their employment.
The changing nature of online communication has blurred traditional lines
between private spaces and workspaces. In unfair dismissal cases, employees have
raised free speech442 and privacy443 as individual ‘rights’ when bringing an application
against their employer. Asserting that free speech is a personal ‘right’ will not assist
dismissed employees as it is not an individual right enforceable against another, and,
if a right does exist, it would not overrule conditions of an employment contract.444 In
Australia, advancing speech freedoms is limited as courts rely on interpretations of the
Constitution for guidance on certain speech rights.
over-control-of-employee-actions-online.html#> where the policy went too far and beyond the
implied rights in contract of employees obligations of good faith and fidelity.
442 Pearson v Linfox Australia Pty Ltd [2014] FWC 446.
443 Little v Credit Corp Group Ltd [2013] FWC 9642.
444 Banerji v Bowles [2013] FCCA 1052 where Banerji was a senior public service employee.
150 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
There are no guarantees of freedom of expression in Australia. Freedom of
expression includes written, oral, and pictorial communication445 and protecting this
freedom is a ‘significant feature of a liberal democracy’446 but there is no legally
enshrined guarantee.447 Whilst there is a right to voice an opinion, provided it is
respectful to others’ rights and reputations,448 no universal right exists in Australian
domestic law.449 In other words, there is no right for one to express an opinion that is
enforceable against another individual. The High Court of Australia has found there is
no implied right of freedom of communication in the Constitution,450 but the court did
determine there was an implied right of political communication.451 The implied
political communication freedom is limited as it is not an individual right,452 but refers
to legislation that prevents representative democracy regarding freedom of
communication of political and public affairs. For general speech other than political
445 Neil Douglas, ‘Freedom of Expression under the Australia Constitution’ (1993) 16(2) University of
New South Wales Law Journal 315.
446 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (Oxford
University Press, 3rd ed, 2012) 254 [10.6].
447 Douglas, above n 445, 319.
448 International Covenant on Civil and Political Rights, opened for signature 16 December (entered
into force 23 March 1976) art 19(1), 3(a)
<http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>.
449 No Bill of Rights in Australia however in Victoria, the Charter of Human Rights and
Responsibilities Act 2006 (Vic) s 15 provides for Freedom of Expression amongst other rights,
however they are not absolute rights. In the United Kingdom, unfair dismissal laws must be
interpreted in accordance with the Human Rights Act 1988 (UK) sch 1, art.8(1) which provides
protection of an individual’s right for private and family life.
450 Miller v TCN Nine Pty Ltd (1986) 161 CLR 556 [11].
451 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1977) 177 CLR 106; Nationwide
News Pty Ltd v Wills (1992) 177 CLR 1. The application is limited to state actors only.
452 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 151
speech, legislation, the common law,453 the limits of defamation454 and other laws455
can restrict certain kinds of freedom of speech.
There are few discrete restrictions on how employers can limit the speech of
their employees. Questionable employee speech can tarnish business reputation even
when the employee is off-duty and their comments or interactions take place on their
personal social media page. Industrial tribunals have acknowledged that employees
are entitled to a private life456 but, in the context of social media, the law is still
evolving in relation to a range of exceptional circumstances where employers can
rescind this right. While some employee behaviour outside of work and in physical
spaces can breach workplace policies and employee obligations in contract,457 users
sharing their personal views online to a much wider audience can unintentionally harm
the employment relationship and/or harm business reputation. Whilst some former
employees in unfair dismissal cases have formed the view that their online speech
should go unconstrained,458 a federal circuit court ruling found that even if freedom of
speech was an individual freedom, the right will not overrule an employment contract.
The lack of clarity in Australian law is a problem for employees as there is a lack of
certainty about when employers can regulate their personal conversations on social
media.
453 See Rose v Telstra [1988] AIRC 1592 re conduct (including speech) that might cause harm to the
employment relationship, or damage business interests or incongruent with duties of employee.
454 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald and Weekly Times
(1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520;
Defamation Act 2005 (NSW); Defamation Act 2005 (Qld); Defamation Act 2005 (Vic); Defamation
Act 2005 (SA); Defamation Act 2005 (TAS); Defamation Act 2005 (WA); Defamation Act 2005 (NT).
455 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; Monis v The
Queen (2013) 249 CLR 92.
456 Rose v Telstra [1988] AIRC 1592 and only in exceptional circumstances can employers intervene.
457 See also Kolodjashnij v Lion Nathan [2010] FWAFB 3258 where an employee was caught drink
driving and their company was publicly committed to the promotion of ‘responsible drinking’.
458 Little v Credit Corp Group Ltd [2013] FWC 9642; Pearson v Linfox Australia Pty Ltd [2014] FWC
446.
152 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
5.3.1 Uncertainty in freedom of political communication and public/private
employees
The Constitutional freedom of political speech is a freedom from state
interference; however, an employee’s conditions of employment may override any
implied freedom of political communication. State employees may also have their
conditions of employment override any implied freedom of political communication.
Whilst public servant dismissals involving personal social media use is outside the
scope of this thesis, recent decisions have important implications for political speech
on social media and an employee’s entitlement to a private life in these spaces. The
Australian Public Service’s (APS) right to discipline an errant employee, Banerji,
relied on her seniority and the way in which her political views could affect her ability
to perform her role.
In the case of Banerji v Bowles,459 a public affairs officer in the Department of
Immigration tweeted under a pseudonym twitter handle, @LALegale, about the
department’s immigration policies, its detention centres, and government officials.
The department considered she had breached the department’s social media policy and
the Australian Public Service (APS) Code of Conduct. Her employer recommended
Banerji’s termination of employment where she then filed a claim with the Federal
Circuit Court seeking an interlocutory injunction. Banerji contended that her tweets
were a simple expression of her political opinion made in her own time and away from
work. Regardless of the APS Code of Conduct, Banerji considered she had a right to
constitutional freedom of political communication that protected her personal tweets.
Justice Neville rejected her assertion and found there was no ‘unfettered right of
political expression’460 and that she was bound by the terms of her employment,
formally constrained by the APS Code of Conduct, and dismissed her application.
Another public service case supported that an implied freedom of political
communication in the Constitution prevented a general right for superiors to discipline
their employees for political speech communicated outside of working hours. In
459 Banerji v Bowles [2013] FCCA 1052.
460 Ibid [104].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 153
contrast to Banerji, the customer service employee did not occupy a senior position
within his department. In Starr v Department of Human Services,461 the Centrelink
employee criticised his department in online forums, such as Whirlpool, by
contradicting Centrelink’s misleading statements on official social media channels that
related to waiting times for Centrelink payments. Starr also posted less than favourable
comments about his work colleagues and managers and was later tracked down and
sacked for his personal conduct as it breached the APS Code of Conduct. The Fair
Work Commission ruled against the dismissal and ordered his reinstatement. The
Commission found that there is an implied freedom of political communication in the
Constitution to the extent necessary to maintain representative and responsible
government and that it operates to preclude the exercise of legislative power to curtail
the freedom.462 Importantly, the Commission found that the Public Service Act 1999
(Cth) does not provide for a general right to discipline APS employees for political
speech communicated outside of working hours and that it was a ‘gross intrusion into
the non-working lives and rights of public servants.’463 The Commission took into
account Starr’s public service role in performing Centrelink administrative tasks and
inferred that had he occupied a more senior role, his political comments in his private
time may have ‘compromised his capacity to carry out his work.’464 The Commission
considered that Starr’s criticism of the department, its members, and budget policy
measures did not compromise his capacity to carry out his front-line Centrelink
functions.465
A concern common in both cases was the way in which employees used public
platforms to express their political opinions. The core problem is that both employees
461 Starr v Department of Human Services [2016] FWC 1460. Starr allegedly posted on the online
forum using the pseudonym ‘mmmdl’to engage in arguments with an official DHS account about
times for youth allowance claims through Centrelink.
462 Ibid [72].
463 Ibid.
464 Ibid [73]. The Commission alluded that this may be the case where the office holder was a
departmental secretary, a policy advisor, a ministerial staff member or a senior diplomat publicly and
emphatically criticised the government of the day. This supports the APS Conduct and Behaviour
Policy that any criticism of the government “must not lead the audience to suspect the employee is
unable to undertake their duties impartially”.
465 Ibid [74].
154 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
posted their political opinions to a public and potentially unlimited online audience
instead of in a closed group. Ideally, the law may develop to support employees to
manage their own boundaries. The benefit is twofold, in that employees are more
careful in what they post to public accounts; and second, an employer’s ability to take
disciplinary action against an employee is limited where an employee posts to their
private social media accounts.
The outcome for an employee’s political speech on social media from these cases
is not typical for all employment relationships. The Banerji and Starr cases involved
members of the public service who voiced their personal opinions on social media
platforms. Their seniority within their respective departments was one of the factors
that influenced the court’s decision. Public service appointments are different from
other employment relationships because their relationship is further constrained by a
code of conduct and the Public Service Act 1999 (Cth).466 Private employees owe
obligations through the employment contract and do not have the constraints of codes
and legislation. The law remains unsettled regarding the extent to which a private
employee breaches their employment contract if they voice their political opinion on
social media. Unresolved tensions arise when the employee expresses a political
opinion online, not as an implied freedom as the government employee in Banerji
contented, but as a statutory protection for which that kind of speech is likely protected.
For private employees, these issues require further clarity especially when there is a
strong incentive for employers to create social media policies that prioritise their
business interests467 without providing substantive protections for employee speech
interests. The next part of this chapter demonstrates how contractual principles provide
another way in which employers can discipline their employees for their social media
(mis)use, followed by an explanation of how Fair Work provisions may help
employees contest dismissal.
466 Public Service Act 1999 (Cth) s 10 sets out APS member values of: committed service, ethical,
respectful, accountable and impartial (apolitical).
467 Pearson v Linfox Australia Pty Ltd [2014] FWC 446, [47] whereby the Commission supported a
policy that protects the reputation and security of business and its application should not be
constrained to work hours only.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 155
5.4 Enforcing Social Media Rules
The extent to which employees are legally bound to comply with organisational
social media rules depends on their incorporation in the employment agreement.
Amongst a range of implied duties in contract, employees owe a duty to act in the best
interests of the employer and to obey their employer’s reasonable directions.468 Both
parties owe implied duties of cooperation to each other to ensure they adhere to the
contract.469 Employers can regulate employee behaviour through the enforcement of
social media rules to protect business interests and to mitigate risk for reputational
harm. In the absence of any modern award or enterprise agreement that unions have
negotiated on behalf of employees, employers can enforce social media rules in two
main ways. First, employers can incorporate social media rules as express contractual
terms that are promissory and bind the employer and employee at law. Second, rules
as directives in a stand-alone social media policy that is separate from the contractual
agreement are less likely express contractual or promissory terms and are, at best,
guidelines470 for preferred employee behaviour. Where policy directives or guidelines
are not express contractual terms, employees are required to obey471 their employer’s
lawful and reasonable directions to comply with the policy. An employee does not
breach contract if he or she does not obey an unreasonable direction. The employer
however, likely breaches contract where policy directives are unenforceable if they are
468 See Hospital Products Ltd v United State Surgical Corp (1984) 156 CLR 41, [68] fiduciary duty;
Breen v Williams (1996) 186 CLR 71, [92]; R v Darling Island Stevedore & Lighterage Co Ltd, Ex
parte Halliday and Sullivan (1938) 60 CLR 601.
469 Mackay v Dick (1881) 6 AC 251, 263 per Lord Blackburn. See Electronic Industries Ltd v David
Jones Ltd (1954) 91 CLR 288, 297 where the obligations of the parties requires co-operative acts, the
parties have a duty of complying with the reasonable requests for performance made by the other.
470 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, [62] where a policy was
found to be part of an employment contract and not a directive for employees to obey.
471 R v Darling Island Stevedore & Lighterage Co Ltd, Ex parte Halliday and Sullivan (1938) 60 CLR
601, 621-622. Statutes and industrial instruments may expand or limit an employee’s obligations to
obey directions. For example, the Public Service Act 1999 (Cth) s 13(5) requires a public servant must
comply with any lawful and reasonable direction given by someone in the employee’s agency who has
the authority to give the direction.
156 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
unlawful and unreasonable.472 This can occur in a situation where a policy unduly
restricts personal autonomy in speech in online spaces.
Social media rules enforced as express or promissory terms in contract require
that the employer and employee act on these terms in good faith. According to lower
court decisions, employers may owe employees an obligation in good faith in the way
they enforce social media rules as express terms in contract. This means that if a good
faith obligation applies to employment contracts it is incumbent on employers to
ensure their social media rules are fair. Where employees perceive that express social
media rules in contract are prejudicial to their personal interests, they can potentially
bring an action in breach of contract based on the employer’s implied duty of good
faith. This is because employers are obligated in the performance of their promises
when they enforce social media rules as contractual terms or as a policy annexed to a
contract.473 While other jurisdictions recognise that good faith exists in all contracts,
including employment contracts,474 the law after the Barker case remains unsettled in
Australia.
5.4.1 ‘Good faith’ obligation is unsettled at law
The implied duties of mutual trust and confidence between employer and
employee no longer apply in Australian law, leaving the second implied obligation of
good faith unsettled at law. The Barker case involved a Commonwealth Bank
executive who claimed damages for breach of contract by alleging that his employer
failed to properly consult with him leading up to his retrenchment. The employee
alleged he lost his chance of redeployment as the Bank failed to follow its own policy.
472 See Francis v South Sydney District Rugby League Football Club Ltd (2002) FCA 1306, [210]
where an employee is not obliged to obey an unreasonable direction and an employer can breach
contract for making an unreasonable direction.
473 Joe Catanzaritti, ‘Reference to a Policy Document Did Not Have the Effect of Incorporating the
Document into the Enterprise Agreement’ (2013) 19(2) Employment Law Bulletin 18.
474 Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 495 where the Canadian Supreme Court
acknowledged that the common law duty of good faith existed in all contracts to act honestly in the
performance of contractual obligations. The court held that this means parties must not lie or
knowingly mislead each other about matters directly linked to the performance of the contract.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 157
The Federal Court found the redeployment policy did not form part of the employment
contract; however, his Honour accepted that the contract included an implied term of
mutual trust and confidence. The court ruled that the Bank, by not following its own
redeployment policy, breached the implied term of mutual trust and confidence475 and
awarded the executive damages. The Commonwealth Bank lost an appeal to the Full
Bench of the Federal Court,476 that confirmed the Bank breached the implied term of
mutual trust and confidence. The Bank lodged a further appeal in the High Court in
which it unanimously upheld the Bank’s argument that the implied mutual trust and
confidence term does not exist in employment contracts in Australia. The joint
decision affirmed that it was not necessary to imply such a term to make the contract
effective.477 The problem with this decision is that the law remains unsettled as to
whether the other implied obligation of good faith exists in employment contracts.
The High Court did not consider whether a standard of good faith could apply to
categories of contract, such as employment contracts, as legal counsel failed to raise
the issue in the proceedings.478 Instead, the High Court’s brief discussion on the
specific notion of fairness concluded that it should not be a universal rule,479 as ‘good
faith is akin to fairness and is wider than honesty in dealings between contracting
parties.’480 In Barker, the judges ruled against there being a universal rule for the
specific notion of fairness in terms of the Bank’s redeployment policy.
Prior to the Barker decision, lower Australian courts assumed that these two
implied obligations – mutual trust and confidence, and good faith – existed in
employment contracts through their origins in English law. These implied obligations
were dissimilar: mutual trust and confidence was about the expectation that the
employer may exercise the prerogative of control and the employee must render loyal
475 Barker v Commonwealth Bank of Australia [2012] FCA 942, [330].
476 Commonwealth Bank of Australia v Barker [2013] FCAFC 83.
477 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [109].
478 Ibid [107].
479 Ibid [108].
480 Ibid [104].
158 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
and obedient service to achieve business objectives.481 On the other hand, the implied
obligation of good faith assumed that parties intended to perform their contractual
obligations in a manner that permitted each party to enjoy the mutually intended
benefits of the contract and importing notions of fairness.482 The Barker case changed
lower courts’ assumptions by settling that the obligation of mutual trust and confidence
did not exist in the employment relationship, leaving unanswered questions as to
whether the obligation of good faith could exist in employment contracts. As this case
remained silent on the good faith issue, lower court decisions indicate that the good
faith obligation exists in employment contracts provided it is not associated with an
employee’s termination or dismissal.
5.4.2 Lower courts acknowledge ‘good faith’ in the absence of employee
termination
The implied obligation of good faith in contract applies in terms of an
employer’s fairness in enforcing social media rules as promissory contractual terms.
Lower courts and tribunal decisions have found that employers owe their employees a
duty to act in good faith in relation to conduct that does not apply to employee
termination. A general definition of good faith performance means ‘not acting
arbitrarily or capriciously; not acting with an intention to cause harm; and acting with
due respect for the intent of [the] bargain as a matter of substance not form’.483 Russell
v the Roman Catholic Church484 was the first case to acknowledge that a duty of good
faith could apply to employment contracts. What set employment contracts apart from
other contracts for services is the devolution of control to the employer.485 ‘In the
context of an employment relationship, if there exists a duty to act in good faith it
“imports a requirement that the person doing the act exercise prudence, caution and
diligence”, which would mean due care to avoid or minimise adverse consequences to
481 Joellen Riley, ‘Siblings but Not Twins: Making Sense of “Mutual Trust” and “Good Faith” in
Employment Contracts’ (2012) 36(2) Melbourne University Law Review 521, 526.
482 Ibid.
483 John W Carter, Contract Law in Australia (LexisNexis Butterworths, 5th ed, 2007) ch 2, 26-27.
484 Russell v Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198.
485 Ibid [84]-[94].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 159
the other party’.486 Morton v Transport Appeal Board [No 1] was a case that aimed to
balance employer and employee interests. Berman AJ stated, ‘what is required is a
balancing, in good faith, of the interests of the employer against adverse effects it may
have on the employee.’487 In the later industrial relations case of Foggo v O’Sullivan
Partners, the tribunal found that ‘employers must treat employees fairly, act
responsibly and in good faith in the treatment of their employees’.488 Schmidt J added
that ‘an employer’s obligation is to exercise prudence, caution and diligence with care
taken to avoid or minimise adverse consequences to the employee.’489
Where an employer’s questionable conduct is unrelated to employee
termination, there is scope for employees to argue that an employer potentially
breached their implied good faith obligations where the express social media rules in
contract are unfair or could harm employee interests. Employers enforcement of social
media clauses that restrict how employees personally interact in online spaces
potentially constrains an employee’s speech and may give rise to an argument that the
employer is in breach of contract. The second and more likely way employers enforce
social media rules is through stand-alone social media policies that may not form part
of a contract and relies on a different set of implied common law obligations.
5.5 Social Media rules as stand-alone policies
Where social media rules exist as directives in stand-alone policies that are not
promissory or express terms in contract, employees are required to obey and cooperate
with these rules. At law, organisational policies are different from contractual terms as
they are often not promissory and exist as guidelines or are aspirational490 in nature.
Policies set the parameters for employee behaviour and expectations that are consistent
with the organisation’s culture whilst reflecting emerging societal norms.491 Policies
486 Ibid [117].
487 Morton v Transport Appeal Board [No 1] (2007) 168 IR 403, 435 [201].
488 Foggo v O’Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87. 115–116 [99].
489 Ibid.
490 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, [49].
491 Sanchez Abril et al., above n 15, 113-114.
160 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
outline what the employer considers as acceptable employee practices, particularly
when posting on social media.492 Employee handbooks are another way in which
employers reflect acceptable social media rules.493 If an employee breaches handbook
terms or directives in a policy, employers may rely on the handbook or policy to
instigate disciplinary action, including termination of the employment contract. Policy
terms that are not part of an employment contract are directives employees’ must obey
provided the directions are lawful and reasonable. Case law explains what factors
make a policy a series of directives, rather than a contractual promise.494 This is
important because implied obligations that apply to policy directives are wider and
more uncertain than implied obligations of good faith that may apply in contractual
promises.
In Romero v Farstad Shipping495 an employer’s Workplace Harassment and
Discrimination policy was part of the employment contract even though the employer
was unsuccessful in arguing that its policy was a series of directives in how they
investigate workplace complaints. As the policy contained promissory terms and was
part of a contract, the court found that the employer breached this contract by failing
to perform the promises as agreed between the parties, and resulted in an award of
damages ordered against them. The court found that the emphasis on compliance
within the policy,496 the letter of offer, and other cumulative features indicated that the
policy was part of the employment contract and not a policy directive.497 Employers
492 See Chapter Four for a discussion of some social media policy directives and Appendix A-J.
493 O’Keefe v William Muir’s Pty Ltd [2011] FWA 5311.
494 Shlomit Yanisky-Ravid, ‘To Read or Not to Read: Privacy Within Social Networks, the
Entitlement of Employees to a Virtual ―Private Zone, and the Balloon Theory‘ (2014) 64(1)
American University Law Review 53, 92. For a policy to be promissory, there must be express consent
in which employers obtain employees‘ informed, willing, written, and signed consent to the policy.
495 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177.
496 Ibid [56]-[57] whereby the policy‘s language made it clear that there was an expectation by the
company that there will be mutual obligations which included an exchange of undertakings or
promises.
497 Ibid [62]. The policy was subject to an education program at or with the offer of employment and
that the employee was required to sign the policy. Also relevant was regular reinforcement of policies
on an ongoing basis at [60].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 161
can lessen contractual breaches that lead to damages by enforcing policies that are less
promissory and do not form part of a contract. Some employers expressly declare that
their policies have no contractual effect.498 This allows employers the benefit of
regularly updating policies without changing individual employee contracts. When an
employer takes steps to limit their contractual obligations by enforcing policies, the
policy rules become directives – provided they are lawful and reasonable directions.499
One way in which employers can ensure their policies have little contractual effect,
and to avoid damages in case of their breach, is to expressly state that policies do not
form part of the contract of employment.500 For example, employment contracts can
include wording to the effect of:
The company's human resources and corporate policies apply to your employment,
but operate independently of this contract and do not form part of it. The policies do
not create any obligation on the part of the company to you.
The Farstad case relied upon various features that resembled employer promises that
made them contractual promises and not aspirational guidelines. The earlier Nikolich
case501 was relevant as to whether clauses in an incorporated document were
contractual in nature.
Any employment contract clause that incorporates employer policies as an
express term of the agreement does not import, as a term of the agreement, every
statement in these policies. The full court in Nikolich highlighted that only health and
safety policies are included as terms in the contract as they are an objective test of the
party’s intentions, whilst other policies are descriptive rather than promissory.502
Despite the aspirational nature of the policies, some practitioners consider that any
498 Yousif v Commonwealth Bank (2010) 193 IR 212.
499 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601, 621-622.
500 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120, [127] whereby the letter
of offer of employment referred to ―instructions and memoranda of which Nikolich had to read and
sign. The court concluded that Goldman was making Mr Nikolich aware that the document applied to
his employment.
501 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 (‘Nikolich‘).
502 Ibid [41].
162 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
clause that incorporates employer policies as an express term of the contractual
agreement imports that every statement is contractually enforceable.503 The same
analogy applies in relation to incorporating a policy document into an enterprise
agreement. An enterprise agreement that referred to an internal disciplinary policy
document did not incorporate the terms of that document into the agreement.504
Annexing those documents to the enterprise agreement is required if parties intend to
incorporate the terms of an external document.505 Therefore, employees are to obey
their employer’s lawful and reasonable directions in two situations. First, when the
policy terms are (a) not express or promissory terms of a contract or (b) when a clause
that incorporates a social media policy as an express term without annexing those
terms to the agreement. The next part of this chapter will examine the limits to which
employees must obey lawful and reasonable policy directives and their broader duty
to cooperate with their employer. This follows with a discussion on how uncertainty
in the law contributes to employee anxieties in terms of the extent to which employers
can control personal interactions, including speech on social media.
5.6 Policies Must Contain Lawful and Reasonable Directions
5.6.1 Lawful and reasonable directions
Employees have implied duties to comply with appropriate instructions and co-
operate with their employers. Employees can challenge the enforceability of their
employer’s social media policy if they consider the policy directives are unlawful and
unreasonable. Employers have the power to direct employees to obey instructions in
social media policies provided they meet certain legal thresholds. This is because
employees have an implied duty of obedience where they are expected to comply with
503 Steve Godding, ‘Termination of a Senior Executive — Questions of Incorporation of Company
Policies, Redundancy and Unsatisfactory Performance, and Trust and Confidence‘(2013) 19(7)
Employment Law Bulletin 102, 106.
504 Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd T/A Yarra Trams [2013]
FCA 330, [19].
505 Catanzaritti, above n 473, 19.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 163
employer instructions, provided those instructions are lawful and reasonable.506 A
breach of contract would occur in circumstances where employer directions are
unlawful and unreasonable.507 The employee is not obliged to obey an unreasonable
direction508 and may argue these grounds if an employer terminates their employment
relationship.509 What is a lawful and reasonable instruction is reliant upon two main
factors: the scope of the employee’s job, and the reasonableness of managerial
authority in terms of broad conditions that causes the firm harm.
5.6.2 Lawful
An employee is required to obey their employer’s lawful instruction if the
instruction falls within the scope of the employment contract. An employer’s lawful
direction has two aspects. First, an employer cannot command performance that would
involve unlawful behaviour510 or expose the employee to personal danger.511 Second,
the lawful direction must be within the scope of employment. The court uses the
‘standard test’ by which the common law determines the lawfulness of a direction
given by an employer to an employee that is independent of a statutory provision.512
506 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601, 621-622.
507 Kelly v Alford [1988] 1 Qd R 404 where the employer instructed their employees to drive an
unregistered and uninsured vehicle.
508 See R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601, 621 where an employee is not obliged to obey an unreasonable direction
unless they expressly agreed to do so.
509 See Adami v Maison de Luxe Ltd (1924) 35 CLR 143, 148 where an employer’s right to terminate
employment may not exist in a non-serious breach; See also McDonald v Parnell Laboratories Ltd
(2007) 168 IR 375; [2007] FCA 1903, [61] where rarely a single act of employee insubordination may
not justify termination.
510 Kelly v Alford [1988] 1 Qd R 404, 410–1; See also Watson v Swatch Group Aust Pty Ltd
[2010] VCC 1067, accepting that an employer may be in breach of contract by directing an employee
to act unlawfully, but finding no such direction on the facts.
511 Bouzourou v Ottoman Bank [1930] AC 271; Ottoman Bank v Chakarian [1930] AC 277, 282–3;
Walker v Zurich Australia Insurance Ltd (2000) 106 IR 23, [50].
512 Grant v BHP Coal Pty Ltd [2014] FWCFB 3027, [118]; McManus v Scott -Charlton (1996) 70
FCR 16, 21.
164 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
Dixon J, in R v The Darling Island Stevedoring and Lighterage Company Limited; Ex
parte Halliday and Sullivan,513 determined that, ‘…the lawful commands of an
employer which an employee must obey are those which fall within the scope of the
contract of service and are reasonable.’514
An employer can expect an employee to perform tasks or instructions that
properly appertain to the employee’s appointed position.515 In the employment
relationship, an employee that disobeys an employer’s directive is in breach of the
bargain but may not justify termination of the employment contract. For example, in
Potter v Workcover Corporation,516 the policy must be both lawful and reasonable and
regard for the ‘character of the policy and the nature of the breach.’ It is a defence that
an employee refuses to comply with a policy or direction if it is illegal, unreasonable
or the policy ‘does not relate to the subject matter of the employment or matters
affecting the work of the employee.’517 What makes a direction reasonable relies on
various factors and is less clear.
5.6.3 Reasonable
The courts have flexibility in determining the meaning of what satisfies the
second element of what constitutes a reasonable command. What is reasonable will
depend upon a range of factors, including the nature of the employment and established
practices and usages. The Darling Island case explains the uncertainty of
reasonableness, ‘…what is reasonable is not to be determined, so to speak, in vacuo.
The nature of the employment, the established usages affecting it, the common
513 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601.
514 Ibid 621.
515 Commissioner for Government Transport v Royall (1966) 116 CLR 314, 322. A court will look at
the surrounding circumstances including any written contract or applicable industrial instrument,
custom or practice which may have contractual effect. See for example Scharmann v APIA Club Ltd
(1983) 6 IR 157 where it was both customary and lawful to require a professional footballer to play in
a lower grade to test his fitness
516 Potter v Workcover Corporation (2004) 133 IR 458, [67].
517 Woolworths (Trading as Safeway) v Brown (2005) 145 IR 285, [34].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 165
practices which exist...’518When examining reasonableness, case law refers to the
appropriate limits of managerial authority.519 Disputes are not always resolved by
simply identifying the scope of the employee’s job, but on a more general
understanding of how far employers can control and direct their workers.520 Courts
have taken a broad view of managerial authority in terms of lawful and reasonable
directions that pertain to personal conduct outside of working hours.521 The court’s
approach in addressing managerial authority is not specific to personal conduct in
online spaces. In terms of senior employees’ comments in public spaces that include
online spaces, an employer’s direction to a school principal to stop campaigning
against the decision to close the school was a reasonable direction.522
There is support for the view that the concept of proportionality is a relevant test
for reasonableness when an employer’s direction relates to conduct outside the
performance of work. The reasonableness/proportionality test is essentially a question
of fact. While proportionality derives from civil law doctrines,523 it has entered
Australian common law.524 In terms of proportionality as a ground of invalidity of
518 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601, 621.
519 Australian Telecommunications Commission v Hart (1982) 43 ALR 165 whereby the employer
was entitled to instruct an employee to refrain from wearing kaftan and thongs and to fine him if he
continued to present at work in this way.
520 Andrew Stewart, Stewart’s Guide to Employment Law (The Federation Press, 5th ed, 2015) 259.
521 McManus v Scott-Charlton (1996) 70 FCR 16; ALR 637 where it was lawful and reasonable for an
employer to direct an employee not to harass a co-worker outside of work hours; See also Griffiths v
Rose (2011) 192 FCR 130 where an employer gave a lawful and reasonable direction to direct an
employee not to use a work computer to view pornography in their personal time and using their own
internet connection.
522 Lane v Fasciale (1993) 35 AILR 339.
523 State of New South Wales & Anors v Macquarie Bank Ltd (unreported 1992) December 322 where
in English cases proportionality usually appears in the context of administrative action. See R v
Goldstein [1983] 1 WLR 151, 155; [1983] 1 All ER 434, 436 where in plain English proportionality
means ‘You must not use a steam hammer to crack a nut, if a nut cracker would do.’
524 Australian Capital Television Pty Ltd v The Commonwealth [No 2] (1992) 66 ALJR 695, 711; 108
ALR 577, 608, 609 where proportionality is a matter of degree. The validity of a law which purports
to limit political advertising, it is necessary to consider the proportionality between the restriction
166 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
regulations made under statutory power, the High Court case of South Australia v
Tanner525 found that it was not enough that the court itself thinks the regulation
inexpedient or misguided. Instead, ‘it must be so lacking in reasonable proportionality
as not to be a real exercise of the power.’526 McManus v Scott-Charlton527 affirmed
that when an employer gives an employee a direction that relates to private conduct,
the concept of proportionality tests the propriety of the direction where a lawful
justification exists for employers to give the direction. In that case, the court was
prepared to apply the proportionality test between the object for which the section
provided the power to make regulations and the purported exercise of that power in
the regulations.528 Aside from employees complying with lawful and reasonable
instructions, employees also owe a wider duty to cooperate.
5.6.4 Duty to cooperate can assist what is ‘reasonable’ behaviour
An employee’s personal conduct may constitute a breach of their implied duty
to cooperate. The implied duty to cooperate with the employer and behave
appropriately while at work is a matter of law.529 An employee’s behaviour extends to
avoiding any conduct that undermines the employer’s business. The conduct requires
an employee’s fidelity and confidentiality and a range of behaviours relating to
misconduct that can justify an employee’s summary dismissal. For example, an
employee must not disparage their employee’s business530 or make private use of an
employer’s property.531 Whether an employer’s direction about out-of-hours conduct
which the law imposes on the freedom of communication and the legitimate interests which the law is
intended to serve.
525 South Australia v Tanner (1989) CLR 161.
526 Ibid 168.
527 McManus v Scott-Charlton (1996) 70 FCR 16, 30; ALR 637.
528 Ibid.
529 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [25]. The parties to any contract
each owe a duty of cooperation that operates in a way that is consistent with the express terms of the
contract. See also Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, [168].
530 RW Jaksch & Associates Pty Ltd v Hawks [2005] VSCA 307.
531 Concut Pty Ltd v Worrell (2000) 75 ALJR 312. But see Croft v Smarter Insurance Brokers Pty Ltd
[2016] FWC 6859, [61] whereby if the manner in which the employee is terminated is harsh, unjust
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 167
is reasonable can rely on three broad considerations. The first is the nature and extent
of the connection between the employment and conduct.532 The second is the adverse
effect on the performance of work or the business533 where an employer can exercise
their authority over conduct that threatens the workplace or the firm’s reputation. The
third is whether a statutory instrument makes the employer vicariously liable for acts
done in connection with the employee’s employment534 whereby the employee’s
conduct can have adverse effects in the workplace. Outside of these broad
considerations, an employer has no right to control or regulate an employee’s out-of-
hours conduct. What is lawful and reasonable management authority over an
employee’s private activities on social media can have implications for an employee’s
personal speech interests and wider personal autonomy interests. These interests
displace an employee’s entitlement to a private life535 in these online spaces.
5.6.5 Unlawful policy directives
Social media policies that restrict personal speech and participation in online
spaces can be unlawful, unreasonable and, ultimately, a breach of contract. Employer
control over personal conduct may be unlawful where the control extends beyond the
scope of the employment relationship. Directions that appear reasonable to mitigate
business risk constitute an unlawful direction where these directions interfere with
private conduct outside the scope of employment and harm an employee’s personal
autonomy interests. Social media policies are designed to protect legitimate workplace
considerations – not protecting employers ‘seeking to prevent or stultify… gossip or
and unreasonable, the errant employee may escape dismissal. At [48]-[49] there was no evidence that
the employer had any particular policy regarding the use of its equipment being confined to work-
related activities.
532 Hussein v Westpac Banking Corp (1995) 59 IR 103 whereby a direct link exists between the
conduct and the employee’s capacity to meet certain standards of behaviour in their position.
533 Rose v Telstra [1998] AIRC 1592.
534 See for example the Sex Discrimination Act 1984 (Cth) s 106. See McManus v Scott-Charlton
(1996) 70 FCR 16, 28 where a direction was given to an employee to stop sexual harassment of a co-
employee.
535 Rose v Telstra [1998] AIRC 1592.
168 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
the ordinary day-to-day banter regarding what occurs at work.’536 Policies that
suppress or constrain personal speech that has little to no connection with an
employee’s work and is unlikely to harm business interests537 may not fall within the
scope of the employee’s job for two reasons.
One reason is that employers imposing further restrictions on personal
communications may extend employer control beyond the limits of the common law.
The common law regulates an employee’s social media use where employees have
obligations in safeguarding the firm’s confidential information and not damaging an
employer’s reputation. For employers to impose further employee obligations that
extend beyond these duties may unduly constrain personal interactions in online
contexts that can erode trust in the relationship.538
The second reason is that employers have a corporate responsibility to respect
communication rights of all stakeholders of the organisation, including their
employees. Corporate Social Responsibility (CSR) is the ‘voluntary incorporation of
social and environmental issues into a company’s business model and operations with
intent to please the diverse stakeholders of the company.’539 Stakeholders are the
voices external to the organisation, such as customers and voices within, including
employees.540 In terms of employee communication rights, Article 19 of the Universal
Declaration of Human Rights states:
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.541
536 McDiarmid v Commissioner of Police [2012] NSWIRComm 100, [137].
537 Rose v Telstra [1988] AIRC 1592.
538 See Broadmeadows Disability Service [2011] FWA 4063, [109] where Commissioner Gooley
considered that an enterprise agreement constraining employee’s conversations online about work did
not pass the ‘Better Off Overall Test’ (BOOT).
539 S Chellaiah, ‘The New Mandated Corporate Social Responsibility-Opportunities’ (2014) 4(10)
International Journal of Academic Research in Business and Social Sciences 442, 443.
540 Cynthia Stohl, ‘Regulating Transformation: Corporate Social Responsibility and Social Media
Policy” Keynote Speaker ICA (2014).
541 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg,
UN Doc A/810 (10 December 1948). See also John Ruggie, Report of the Special Representative of
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 169
Employers potentially breach this responsibility to their employees by implementing
divisive social media policies that can interfere in the way in which employees
privately interact in their online networks. Chapter 6 discusses how five
communicative tenets of CSR can assist employers develop principled, rights based
policies.
5.6.6 Testing the limits of lawful and reasonable
Policy restrictions on employees’ general speech may be unlawful and
unreasonable if the restrictions are outside the scope of employment and are unlikely
to cause the business harm. If an employer dismisses an employee for a serious policy
breach that purports to regulate the employee’s private conduct, the employee’s
conduct must fall within the broad considerations of the duty to cooperate and the Rose
v Telstra circumstances. Employers that dismiss employees whose online conduct falls
outside broad considerations do so unreasonably and at the expense of harming
personal autonomy in speech. Employees may be able to challenge unreasonable
organisational social media policies that seek to constrain one’s personal autonomy
interests in online contexts. Some policy directives highlighted in Chapter 4 were used
as examples to demonstrate potential risks for personal autonomy interests that
included identity preference, participation, and speech on social media. These same
example directives can also provide insights into what an unlawful and unreasonable
direction might look like.
the Secretary-General on the issue of human rights and transnational corporations and other business
enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework, UN Doc A/HRC/17/31 (21 March 2011) ;John Ruggie,
Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special
Representative of the Secretary-General on the issue of human rights and transnational corporations
and other business enterprises, United Nations Human Rights Council, UNHRC Res 8/5, 8th sess,
Agenda item 3, UN Doc A/HRC/8/5 (7 April 2008). This framework provides an authoritative
statement on the relationship between business and human rights, recognising that while governments
have the primary duty to protect and promote human rights, businesses have a distinct responsibility to
respect human rights, essentially a “do no harm” standard.
170 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
The 2 Sticks Digital and Adidas policy directives that restrict pseudonymous and
anonymous accounts may be unlawful and unreasonable directions. For example, the
2 Sticks Digital Marketing policy does not expressly state the policy relates to personal
use but cautions employees against posting anonymously or using false names: ‘Do
not blog anonymously, using pseudonyms or false names. We believe in transparency
and honesty.’542 While the directive applies to employees who blog and represent the
firm in an official capacity, an employee could infer the pseudonymous/anonymous
restriction applies to their personal blogging,543 given the absence of the policy’s
application to an employee’s personal blogging activity. The Adidas policy cautions
its employees against posting anonymously, hinting that some platforms do not truly
allow for anonymous postings; for example: ‘anonymous postings on Wikipedia can
be traced back to the company.’544 Policy directives that restrict the way in which
employees personally interact in online spaces have little to do with an employee’s
work and are outside the scope of the employment relationship. If an employer tries to
discipline or terminate the employee for not complying with the policy directive, the
employee may argue that the directive is unenforceable. While there is uncertainty in
the law as to the enforceability of these restrictive directives, a court may find these
policies unlawful and unreasonable which can give rise to contractual rights for an
employee to seek a remedy for the employer’s breach of contract.545
542 See Appendix A 2 Sticks Digital Marketing Social Media Policy.
543 Australian law or social media guidelines have not addressed employee prohibition of
pseudonymity or anonymity on social media. However, the National Labor Relations Board in the
United States have addressed the issue. See Office of the General Counsel, ‘Report of the General
Counsel,’ (March 2015)
<http://www.dykema.com/assets/htmldocuments/Report%20of%20the%20General%20Counsel%20C
oncerning%20Employer%20Rules.pdf >22. The National Labor Relations Board (NLRB) ruled that
the retail chain ‘Wendy’s’ social media policy was overbroad and unlawful. The policy prohibited
employees from emailing, commenting or blogging anonymously ‘You may not email, post, comment
or blog anonymously. You may think it is anonymous, but it is most likely traceable to you and the
Company.’
544 See Appendix C Adidas Social Media Policy.
545 Employer breach of contract may also apply where the clause is an express term of a contract that
may breach the employer’s implied duty of good faith (if it exists) to not harm employee interests. See
Morton v Transport Appeal Board [No 1] (2007) 168 IR 403, 435 [201] whereby Berman AJ said in
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 171
5.6.7 A mandated work affiliation may be a double-edged sword
Policy directives that mandate the use of work disclaimers on personal accounts
may be unlawful and unreasonable directions. These directives may extend beyond the
employer’s perceived risk and the scope of employment. Employers justify an
employee’s work disclaimer as an important measure to identify the user’s affiliation
and that the employee’s comments do not represent the views of the company. In this
context, a company can show brand transparency and reduce the risk of false and
misleading online statements through a mandate that requires its employees to affiliate
with their work when talking about the firm or endorsing its products or services.546
For example, policies from Chapter 4 including Coca-Cola, Telstra, Latrobe
University, Dell, Nordstrom and Adidas required their employees to affiliate with their
work via a work disclaimer only when social media content was ‘company-related.’547
Work disclaimers on personal accounts can serve legitimate purposes to achieve
business ends, but their use can erode personal autonomy interests, particularly
individual identity. For example, KPMG’s policy did not expressly state whether its
work affiliation applied to an employee’s personal life, although an employee can
imply this from the clause: ‘always (emphasis added) disclose your affiliation with
KPMG. Be clear that the views you express are your own, not those of KPMG.’548
Adidas required that any personal comment made in relation to Adidas-related issues
should use a disclaimer: ‘the postings on this site are my own and do not necessarily
represent the position, strategy or opinions of the Adidas group and its brands.’549
terms of good faith, ‘what is required is a balancing, in good faith, of the interests of the employer
against adverse effects it may have on the employee.’
546 Australian Competition and Consumer Commission, ‘What you need to know about online
reviews: a guide for business and review platforms’ (November 2013)
<http://www.accc.gov.au/system/files/Online%20reviews%E2%80%94a%20guide%20for%20busines
s%20and%20review%20platforms.pdf> ; Competition and Consumer Act 2010 (Cth) s 18 where
failing to disclose paid endorsements is considered misleading and deceptive, and can attract serious
penalties. This applies to any organisation that engages in trade and commerce.
547 See Appendices D,J,G,E,H,C for Coca Cola, Telstra, Latrobe University, Dell, Nordstrom, Adidas
Social Media Policies respectively.
548 See Appendix F KPMG Social Media Policy.
549 See Appendix C Adidas Social Media Policy.
172 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
Work affiliations through disclaimers may be detrimental to employees and employers
at law because the company reference within the disclaimer automatically binds that
individual’s interaction to the firm.
An employer’s direction for employees to disclaim their personal social media
interactions potentially gives the employer an important legal advantage. Employees
that disclose their affiliation with work on their personal profile or post potentially
satisfies a visible work connection at common law550 and may support a valid reason
for dismissal in unfair dismissal proceedings. In unfair dismissal proceedings, the
Commission considers criteria as to whether the employee’s dismissal was harsh,
unjust, or unreasonable.551 If the Commission cannot sufficiently establish a work
connection or show the employee’s duties are incompatible as an employee, the
dismissal will be harsh.552 Some policy directives discussed in Chapter 4 that mandate
employees use their real identities to affiliate with their work on their personal social
media accounts may satisfy a work connection that links the employee’s personal
comment to their work. An employee that obeys the directive may establish a visible
work connection from their personal account that can enhance their employer’s
prospects of defeating an unfair dismissal claim. Conversely, employers mandating an
employee’s connection with work on their personal social media interactions
potentially expose the firm to greater legal risk. This means that every employee’s
online statement or interaction – including likes, shares, and retweets – can bring the
employee’s interactions within the operation of the firm’s policy. These interactions
are a significant incursion on employee legal interests as potentially all employee
statements, including interactions that have little connection with work, attributes
those statements to the firm.
Whilst an employer can legitimately restrict employee conduct that has a
connection with work and harms their employer’s business interests,553 restrictions
placed on all employees’ general speech and social media interactions may render
550 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 where a connection with work is one of three broad
considerations of an employee’s implied duty to cooperate. What a work connection might be or a
relevant test for determining a work connection in online contexts is unclear.
551 Fair Work Act 2009 (Cth) s 387.
552 Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358.
553 Rose v Telstra [1998] AIRC 1592.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 173
these directives unreasonable. This is because employee interactions that do not relate
or have a loose connection to the broad circumstances may be disproportionate to any
business harm. Restrictive directives that potentially harm personal autonomy in
speech, appropriate identity, and curb online participation can collectively diminish an
employee’s entitlement to a private life that is outside the scope of employment. At
law, an employer in these circumstances risks breaching contract. In the case of policy
directives that mandate a work affiliation on personal accounts, the directive is both
unlawful and unreasonable. An employer's control over their employees’ activities
outside of work has its origins largely in common law but the limits of reasonable
managerial authority on social media is still a vexed issue for the employment
relationship. The boundary rests heavily on judicial interpretations of implied
obligations of the employment relationship, including duties of good faith, obedience,
fidelity, and cooperation.554An employer may have sound reasons why they would
enforce restrictive policy directives to mitigate for risk but an imbalance occurs
between competing employer/employee interests that have implications for law and
policy-making. Employers that appreciate the kinds of personal autonomy interests
that challenge the lawfulness or reasonableness of their directions may encourage them
to do more to preserve these interests. In addition to enforcing contractual rights
against questionable policy directives, an employee’s social media (mis)use that
breaches a policy could seek statutory remedies through the Fair Work Act 2009 (Cth)
provisions.
5.7 Statutory Remedies that Challenge Dismissal for Employee Social Media
(Mis)use
5.7.1 Unfair dismissal claims must be harsh, unjust or unreasonable
Employees may seek statutory remedies under the Fair Work Act 2009 (Cth) to
preserve their personal autonomy interests on social media. Employees can seek
contractual remedies against unenforceable policy directives that are potentially
unlawful and unreasonable. Where an employee’s dismissal occurs because of their
554 Louise Thornthwaite, ‘Chilling Times: Labour Law and the Regulation of Social Media Policies’
LLRN Conference (2013) <http://www.upf.edu/gredtiss/_pdf/2013-LLRNConf_Thornthwaite.pdf >8.
174 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
social media (mis)use that potentially breaches the firm’s policy, the employee may
seek a remedy – for example, reinstatement – through Fair Work Act 2009 (Cth)
applications. An employee’s alleged breach of a social media policy may not justify
their dismissal. The Fair Work Commission adjudicates unfair dismissal proceedings
concerning personal use of social media in terms of substantive and procedural
fairness. Prior to any adjudication of an employee’s dismissal claim, the Commission
must be satisfied that the person has protection from unfair dismissal.555 The
Commission will consider matters that include whether the application falls within the
required time,556 whether the dismissal was consistent with the Small Business Fair
Dismissal Code,557 and whether it was a case of genuine redundancy.558
For any finding of an unfair dismissal559 the Commission must be satisfied that
an employee’s dismissal was not harsh, unjust, or unreasonable.560 The Commission
considers procedural fairness factors or chances of an employee improving their
performance.561 To determine if the dismissal was harsh, unjust, or unreasonable the
Commission must be satisfied that the employer had a valid reason for terminating the
555 Fair Work Act 2009 (Cth) s 382 sets out two requirements. Section 383 describes where the person
has completed the minimum employment period, ordinarily six months and 12 months if small
business employer with fewer than 15 employees. Section 333 sets out that the person must either be
covered by an award or enterprise agreement or have annual earnings that are less than the high
income threshold. See s 386 where the employee will need to show they have been dismissed to
satisfy the Commission that a dismissal occurred as required in s 385.
556 Ibid. See also section 380 where only national system employees are eligible in bringing a claim
lodged within a 21day period from the dismissal in s 394(2). Section 394(3) sets out exceptional
circumstances where late applications are accepted.
557 Ibid ss 385, 388 requirements of small business employer.
558 Ibid s 385(d) where the Commission is satisfied that a dismissal is not a case of a genuine
redundancy.
559 The Commission has powers as to whether to deal with the matter on the papers or to convene a
conference or hearing. See Fair Work Act 2009 (Cth) s 397 where the Commission must conduct a
conference or hold a hearing if the matter involved disputed facts. Section 399 refers to whether a
hearing is warranted to resolve the matter.
560 Fair Work Act 2009 (Cth) s 385(b). As the Commission must be satisfied that a dismissal is unfair,
the applicant in a practical sense has a burden to establish a case for relief even though there is no
formal burden on the applicant to establish unfairness.
561 Ibid s 387(a)-(h).
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 175
employment relationship.562 To satisfy a valid reason for dismissal, the reason must be
‘sound, defensible and well founded and not capricious, fanciful, spiteful or
prejudiced.’563 For example, a valid reason for dismissal may occur when an employee
uses the employer’s computer system to send offensive emails,564 or where an
employee stores or sends pornographic materials in breach of the firm’s computer use
policies.565 The dismissal will be harsh where the Commission is not satisfied there is
a valid reason for the dismissal or by other fairness requirements.566 The Commission
may determine the dismissal unfair because of the way in which the employer handled
the matter or whether the employee had a record of service.567 If the Commission is
satisfied that a dismissal is unfair, the Commission may grant the applicant two
remedies: employee reinstatement or compensation.568
An employee’s questionable comments on a personal Facebook page may not
always constitute a valid reason for dismissal, particularly if there is no evidence the
firm suffered any consequential damage from an employee’s post. For example, in
Fitzgerald v Dianna Smith569 the employer unfairly dismissed the employee
562 Ibid s 387(a). The remaining sub sections relate to procedural fairness matters and Small Business
Fair Dismissal Code.
563 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
564 Anderson v Thiess Pty Ltd [2015] FWCFB 478.
565 Brambleby v Australian Postal Corp [2014] FWCFB 9000.
566 Fair Work Act 2009 (Cth) s 387 (b) whether the person was notified of that reason;
and(c) whether the person was given an opportunity to respond to any reason related to the capacity
or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to
have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal
related to unsatisfactory performance by the person-whether the person had been warned about that
unsatisfactory performance before the dismissal; and (f) the degree to which the size of the
employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal;
and (g) the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in effecting the
dismissal; and (h) any other matters that the FWC considers relevant.
567 King v Catholic Education Office Diocese of Parramatta (2014) 242 IR 249.
568 Fair Work Act 2009 (Cth) s 390(1). See s 390(3) where compensation must not be ordered unless
the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in
all the circumstances of the case.
569 Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358.
176 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
hairdresser after she posted insulting comments about her employer on her personal
Facebook page. ‘Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!
Whoooooo? The Hairdressing Industry rocks man!! AWESOME!’570
In this case, the Commission found even though the employee’s personal post was
undermining her employer’s trust and confidence, the business did not suffer any
damage and the employer fell short of providing a valid ground for dismissal.571
5.7.2 Termination disproportionate to policy non-compliance
Some cases highlight that an employee’s unique circumstances may assist their
reinstatement from dismissal. For example, an employee’s good service history could
challenge their employer’s disciplinary action following an alleged policy breach. In
Woolworth’s (Trading as Safeway) v Brown572 the employer dismissed the employee
for failing to remove his eyebrow ring after his employer directed him to do so. In this
case, the employer had a strict dress and safety policy that prohibited the piercing. The
Commission discussed circumstances where it may be appropriate to order
reinstatement, such as ignorance of a policy where a dismissal may be a
disproportionate response having regard to the employee’s service history;573 however,
in this case, the Commission upheld his dismissal.
In another case, an employee’s unblemished employment record was a
mitigating factor in their reinstatement from dismissal. In Atfield v Jupiters Ltd574 a
casino worker was terminated after he breached the casino’s policy of gambling on the
casino premises. However, the employee in this case was unaware that the prohibition
extended to premises adjoining the casino. When he realised that his gambling activity
could breach the casino policy, he withdrew his bet. In addition, his unblemished
employment record and his commitment to training were mitigating factors whereby
570 Ibid [21].
571 Ibid [56], [66]. See also Mayberry v Kijani Investments Pty Ltd (2011) FWA 3496 where the
dismissal was regarded as unfair because there was no evidence of damage to the employer.
572 Woolworths (Trading as Safeway) v Brown (2005) 145 IR 285.
573 Ibid [36].
574 Atfield v Jupiters Ltd (2003) 124 IR 217, [11].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 177
the Full Bench considered his termination was harsh. On social media where there is
more pronounced blurring of personal and work, employee misunderstandings can
arise between posts that are personal and have nuances of work that can affect their
ongoing employment. Some cases575 have highlighted blurred private and work
boundaries where employers have dismissed employees for their personal opinions on
social media. Other cases have acknowledged an employee’s breach of the policy does
not always mean the breach will lead to their dismissal.
In Faulkner v BHP Coal Pty Ltd576 the employee posted a comment on Facebook
where he contravened a policy that prohibited mobile devices on the worksite due to
safety reasons. The employer dismissed the worker for serious misconduct. The
Commission found there was a valid reason for dismissal due to his breach of the
policy but the dismissal was harsh in the circumstances. The Commission noted that
employers may legitimately prohibit mobile devices for safety reasons, but in
contemporary society where there is reliance on communication devices, the employer
allowed phone access during breaks and provided telephones in crib rooms for
employee use.577 The Commission ordered the reinstatement of the worker after the
Commission considered that the policy allowed for dismissal as the only outcome of a
breach and other mitigating factors.578 Individual factors the Commission considers to
determine reinstatement – including regard for the employee’s service history,
ignorance of a policy, or the impacts of technology on work – show the degree of
uncertainty to which the Commission adjudicates employee breaches of policy.
5.7.3 Employee political speech protections in adverse action claims
The Commission has the authority to adjudicate on general speech protections,
particularly if that speech relates to an employee’s political opinion. Apart from
575 Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358; O’Keefe v Williams Muir’s
Pty Ltd [2011] FWA 5311.
576 Faulkner v BHP Coal Pty Ltd [2014] FWC 9330.
577 Ibid [92].
578 Ibid [97]. The Respondent’s policy was not clearly written or implemented as a ‘zero tolerance’
policy, whereby dismissal was the only outcome. In addition, a strong and clear implementation and
application of the procedure was found to be wanting in the current circumstances.
178 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
challenging unfair dismissal, dismissed employees may seek a remedy for their
protected speech under the Fair Work Act 2009 (Cth). Adverse action protects
employees for exercising a workplace right that includes making a complaint or
inquiry in relation to a person’s employment.579 The Act’s protection may include
employees posting comments that are unfavourable for the firm; for example,
comments relating to their wages, conditions of employment, or engaging in industrial
activity. It is unlawful for employers to dismiss employees, treat them detrimentally,
or have their position altered to their prejudice because they engage in industrial
activity. Employees can be protected from any adverse action even when these
comments are ‘impetuous expressions of frustration, that may constitute industrial
action’580, that are broadly defined.581 The trade union statutory protection may assist
employees despite employers viewing employees’ negative comments as causing
damage to the firm’s business reputation. Any employer action that would restrict or
‘chill’ these discussions is likely an unfair labour practice.
Chapter 4 illustrated examples of policy directives that restricted employee
speech that may relate to the employee’s work. For example, La Trobe, Peter Novelli
and Adidas policies all directed their employees not to post any content that is
‘inflammatory, or… could bring the company into disrepute or …comment on any
work-related matters.’582 These directives potentially limit employee speech because
they infer employees cannot comment or post about work issues that reflects
negatively on the firm. The Nordstrom policy directs employees to ‘always treat
others… in a positive manner’;583 however, employees posting about unfavourable
work conditions may not constitute a courteous or positive conversation.584 Limited
579 Fair Work Act 2009 (Cth) s 341.
580 Thornthwaite, above n 554, 10.
581 Fair Work Act 2009 (Cth) s 347 provides a broad definition of when a person engages in industrial
activity.
582 See Appendix G La Trobe Social Media Policy, Appendix I Peter Novelli Social Media Policy,
Appendix C Adidas Social Media Policy.
583 See Appendix H Nordstrom Social Media Policy.
584 The extent to which employers can constrain employee work discussions on social media is
unsettled at law. See also for example in the United States, employers that engage in unfair labour
practices on social media can breach legislation and receive orders to cease and desist and take
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 179
case law585 and lack of industry guidelines does little to address this issue. Policy
directives that limit work-related discussions are problematic because they potentially
infringe employees’ statutory speech protections relating to their trade union activity
or political opinion.
The Act provides general protections for employee political opinions, but the
law is yet to determine the scope and limits of that protection in the context of social
media. More cases are evolving that test the boundaries of political speech in online
spaces. State and territory anti-discrimination legislation586 prohibits discrimination
against employees based on various protected attributes, one being protection of an
individual’s political belief or activity. If an employee qualifies as a national system
employee587 an employer must not take adverse action against a person who is an
affirmative actions to rectify their breach. For example, Chipotle’s social media code of conduct was
unlawful and the employer breached the National Labor Relations Act (NLRA). The decision in
Chipotle Services LLC d/b/a Chipotle Mexican Grill and Pennsylvania Workers Organizing
Committee, a project of the Fast Food Workers Committee. Cases 04-CA-147314 and 04-CA-149551
August 18, 2016, No. 72 found that Chipotle’s social media code of conduct was unlawful because it
prohibited employees from making disparaging, false, or misleading statements that violated Section
8(a)(1) NLRA (National Labor Relations Act). The workers’ handbook was also overbroad in terms of
rules regarding solicitation, confidential information, ethical communications and political activities.
The employer directing an employee to delete certain tweets and not engage in similar protected
concerted activity breached the NLRA. The employer violated Section 8(a)(1) of the NLRA that
chilled employees’ speech in the exercise of their Section 7 rights to engage in protected concerted
activities under the National Labor Relations Act.
585 See Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168, [20] where
employees can complain about their employment rights and treatment at work with others.
586 Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act
1991 (Qld); Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (SA);
Anti-Discrimination Act 1998 (Tas); Discrimination Act 1991 (ACT); Anti-Discrimination Act (NT).
587 Fair Work Act 2009 (Cth) s 14 states that a National System Employer is: (a) a constitutional
corporation, or (b) the Commonwealth, or (c) a Commonwealth authority; or (d) a person so far as
the person, in connection with constitutional trade or commerce, employs, or usually employs, an
individual as a flight crew officer; or a maritime employee or a waterside worker; (e) a body corporate
incorporated in a Territory, so far as the body employs, or usually employs, an individual; or (f) a
person who carries on an activity (whether of a commercial, governmental or other nature) in a
180 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
employee, or prospective employee, because of the person’s race, colour, sex, sexual
orientation, age, physical or mental disability, marital status, family or carer’s
responsibilities, pregnancy, religion, political opinion, national extraction or social
origin.588 An action that constitutes an adverse action can include the employer
unlawfully dismissing the employee or discriminating between the employee and other
employees.589 A situation where an employer dismisses the employee based on their
political activity on Facebook, for example, could amount to an adverse action claim
against that employer. The substance of an employee’s political post or tweet posted
on their personal page that offends others does not automatically mean their exclusion
from political discourse.
The High Court ruled the fact that statements are offensive or insulting does not
take them outside the field of political discourse that causes offence or insult.590 The
case of Gaynor v Chief of Defence (No 3)591 is useful in this context because it
reinforced the Court’s political opinion interpretation. In that case, an army reservist
made anti-gay comments on his personal Twitter page. Gaynor commented on
transgender army officers and criticised the defence force in approving members
participating in the gay Mardi Gras. Gaynor claimed the apolitical defence force
favoured gay rights over his political and religious beliefs because his public
comments contravened military rules and policies. The court ruled that the offensive
speech was political speech, ‘…even when directed at personal condemnation, as in
the case of the transgender officer…the applicant was attempting to make a public
statement of a political kind.’592 Other cases have indicated where a private employee
will not succeed in an adverse action claim against their employer.
Employees instigating an adverse action claim against their employer can be
difficult because the court focuses on the employer’s legitimate reasons at the time the
Territory in Australia, so far as the person employs, or usually employs, an individual in connection
with the activity carried on in the Territory.
588 Ibid s 351.
589 Ibid s 342(1).
590 Coleman v Power (2002) 220 CLR 1.
591 Gaynor v Chief of Defence (No 3) [2015] FCA 1370.
592 Ibid [248].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 181
employer instigated action. If the employer can convince the court it had legitimate
reasons for instigating action against the employee, there is no breach of the Act. An
adverse action claim provides for a reverse onus of proof whereby the employer is
required to show they did not dismiss the employee unlawfully. The problem is that
this reverse onus does not create an irrebuttable presumption at law in favour of the
employee.593 Employers are required to show they took action for some other reason
– for example, enforcing a policy – and not because of their employee’s political
opinion or trade union activity.594 For example, the Bendigo TAFE v Barclay595 case
focussed on the employer’s approach in disciplining the employee teacher over his
misuse of email and his role as a union representative. The teacher argued his union
position was the reason for the disciplinary action and that he exercised a workplace
right when he emailed members regarding Bendigo TAFE’s involvement in fraudulent
audit practices. His employer suspended the teacher for his conduct after he failed to
provide them with details of their alleged fraudulent activity. The teacher’s behaviour
amounted to a breach of the code of conduct,596 not for his union membership. The
manager was concerned the teacher failed to report the allegations of fraudulent
conduct to senior management and such allegations were bound to distress staff
members. The manager considered that if the teacher was not suspended597 he would
cause further damage to the reputation of TAFE and its staff.598
The majority of the High Court ruled that the test is whether the employer has
taken adverse action because of a proscribed reason, with the focus on the inquiry upon
the ‘reasons of the decision-maker at the time the adverse action was taken.’599 In other
words, if the decision-maker’s own evidence of her immediate reasons for imposing
adverse action are legitimate and believed, there can be no breach of the Act. The High
Court believed the manager’s reason for the teacher’s suspension was due to his code
593 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248
CLR 500; 290 ALR 647.
594 Fair Work Act 2009 (Cth) s 346 employee protections against their trade union activity.
595 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248
CLR 500; 290 ALR 647.
596 Ibid [27].
597 Ibid [26].
598 Ibid [27].
599 Ibid [127].
182 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
of conduct breach and not because of his union activities. The court paid little attention
to the substance and validity of the code of conduct and focussed its inquiry on the
proscribed reasons of the decision-maker at the time of the adverse action.
The next section discusses two recent employment disputes involving individual
political opinion or activity on Facebook and Twitter that resulted in the standing down
or dismissal of employees. As these disputes appear to have been resolved through
private conciliation without the Commission’s adjudication of the issues, the law
remains unsettled to the extent to which general protections safeguards (if at all) an
employee’s personal political opinion on social media.
5.7.4 Case study one: Immigration detention officers
Case study one involved eight contracted security staff of the Nauru immigration
detention centre that were stood down due to their controversial political and religious
activity on their personal Facebook pages. The men posted anti-Islamic slurs by
supporting the ‘Reclaim Australia’ rally where they posed for pictures with anti-
immigration political activist, Pauline Hanson.600 The contracting company, Transfield
Services, stood down the men whilst they investigated possible breaches of their social
media policy. The men could claim that their employer had taken adverse action
against them because of their political opinion, at least insofar as supporting the
‘Reclaim Australia’ movement in restricting immigration. The issue here appears to
run much deeper into the contracting company’s policy itself. Based on media reports,
the company’s social media policy allegedly ‘breaches employee’s civil liberties and
personal freedoms.’601 For example, media reports suggest that the social media policy
allegedly forbids workers joining a political party that ‘does not agree with
Transfield’s actions, or attend a political rally in opposition to offshore
600 Joshua Robertson, ‘Detention Centre Guards Suspended over Social Media Posts’ The Guardian
(14 April 2015) < http://www.theguardian.com/australia-news/2015/apr/14/detention-centre-guards-
suspended-over-photo-with-pauline-hanson-at-rally>.
601 Ben Doherty, ‘Transfield Immigration Staff Told They Can Be Fired for Using Facebook’ The
Guardian (7 April 2015) < http://www.theguardian.com/australia-news/2015/apr/07/transfield-
immigration-staff-told-they-can-be-fired-for-using-facebook>.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 183
processing…this includes churches publicly opposed to the policy or refugee advocacy
and welfare groups.’602 Whilst Transfield is a government security contractor, these
circumstances are quite different from Banerji’s case. In the Banerji case, her senior
immigration department role and conduct, including her pseudonymously tweeting
about the government’s immigration detention policies, contributed to her termination
of employment. In contrast, the security guards are contractors where they do not
occupy senior positions and are not strictly government employees bound by a Public
Service Act. Provided the media reports are correct, the Transfield policy potentially
constrains all contractors’ behaviours including their personal associations and
political opinions. While the guards’ actions indicate they oppose immigration
policies, the policy also constrains the behaviour of guards that are pro-refugee and are
concerned about refugee welfare. The social media policy prevents pro-refugee guards
from expressing or showing support that emanates from their own moral views or
religious associations in terms of detention policies. If these clauses exist, an
employee’s autonomy in speech is in danger and raises questions about the legitimacy
and enforceability of these kinds of policy directives.
5.7.5 Case study two: SBS reporter
Case study two involved the sacking of an SBS reporter who posted his
controversial views on twitter on ANZAC Day in 2015. The reporter made comments
in his personal time and on his personal Twitter account (even though his profile stated
that he was an SBS journalist with over 35 000 followers). The reporter’s comments
drew criticism from the public Twitter audience with the Federal Communications
Minister at the time tweeting that the reporter’s posts were ‘despicable.’603 Later that
day, SBS management allegedly dismissed the reporter for breaching their code of
602 Ibid. In terms of employees personally supporting churches or other rallies, this policy might also
include employee exclusion from the #Letthemstay rallies whereby the public protested against the
transportation of a sick infant from hospital back to the Nauru immigration detention centre from
where she sustained her injuries.
603 Jean Kennedy, ‘Scott McIntyre Sues SBS over Sacking for Anzac Day Tweets’ ABC News (18
May 2015) <http://www.abc.net.au/news/2015-05-18/scott-mcintyre-sues-sbs-over-sacking-for-anzac-
day-tweets/6478816>.
184 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
conduct and social media policy. The reporter subsequently lodged an application in
the Fair Work Commission seeking a remedy from his employer’s adverse action for
terminating his employment because he voiced his political opinion on Twitter. This
case is different from other social media cases involving employment disputes around
one’s online speech.604 The reporter later abandoned the adverse action claim as it was
destined to fail. This is because general protections for which an adverse action
protects are limited in their scope as they are reliant on state and territory anti-
discrimination laws.605
The SBS reporter relied upon political opinion as a protected attribute; however,
under the New South Wales Anti-Discrimination Act 1977, political opinion is not a
protected attribute.606 In other words, the reporter was not able to advance his adverse
action claim against his employer because New South Wales legislation does not
recognise political opinion as a protected attribute, which, in turn is not protected
speech under the Fair Work Act 2009 (Cth).607 Aside from the limits of adverse action,
unlawful termination is a Fair Work provision that can protect employee’s political
speech on social media.
5.7.6 Employee political speech protections in unlawful termination
Unlawful termination under the Fair Work Act 2009 (Cth) circumvents the
protected speech limitations of adverse actions and may assist employees challenge
their dismissal. Adverse actions may protect an employee’s political opinion but only
if that person’s state anti-discrimination law protects political speech. On the other
hand, unlawful termination608 has no such limitations and may apply to employee
604 Note in Pearson v Linfox Australia Pty Ltd [2014] FWC 446 Pearson claimed he had a right to free
speech and did not invoke alternative actions such as Adverse action.
605 Fair Work Act 2009 (Cth) s 351(2)(a).
606 All states and territories except for New South Wales and South Australian Anti-Discrimination
legislation lists political opinion as a protected attribute.
607 Fair Work Act 2009(Cth) s 351.
608 Ibid s 772(1)(f) where grounds for unlawful termination includes race, colour, sex, sexual
preferences, age, physical or mental disability, marital status, family or carer‘s responsibilities,
pregnancy, religion, political opinion, national extraction or social origin.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 185
termination. Unlawful termination is similar to employee general protections609
whereby there is a reverse onus upon the employer to prove a reason other than adverse
action where a worker‘s employment was terminated for one or more of the listed
reasons that will be the presumed reason unless the employer can prove otherwise.610
The reasons for termination of employment are broad and ambiguous and, unlike the
specific unfair dismissal provisions, provide uncapped compensation611 that can
provide employee incentives to rely on them as a more lucrative avenue for
compensation for dismissal.612 After the SBS reporter abandoned the adverse action
claim, he was able to lodge an unlawful termination application613 on the grounds of
his political opinion. The central issue for both the security guards and the SBS
reporter’s cases is the scope of political opinion and the extent to which employee
protections safeguard political opinion in the digital space. The Commission did not
adjudicate the reporter’s case because on the eve of the hearing the parties reached a
private settlement.614
609 Ibid s 723 provides that a person may not apply for relief against unlawful termination if they are
entitled to challenge the dismissal under the general protections in Part 3-1 of the Act.
610 Ibid s 783.
611 Vickery v Assetta [2004] EOC, 93-330.
612 Productivity Commission, ‘Workplace Relations Framework - Productivity Commission Draft
Report’ (4 August 2015) http://www.pc.gov.au/inquiries/current/workplace-relations/draft 29.
Comments were in terms of general protections provisions that are similar to unlawful termination
reasons. See The Productivity Commission, ‘Workplace Relations Framework- Final Report’ (21
December 2015) http://www.pc.gov.au/inquiries/completed/workplace-relations/report/workplace-
relations-volume2.pdf 564, offered no further commentary on the issue other than to reiterate that
dismissed employees cannot pursue an unlawful termination if they are able to make a general
protections complaint where compensation is uncapped.
613 McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768.
614 ‘Joint Statement by SBS and Scott McIntyre’ SBS Media Release (11 April 2016)
<http://www.sbs.com.au/aboutus/news-media-releases/view/id/1059/h/Joint-Statement-by-SBS-and-
Scott-McIntyre >. McIntyre acknowledged that the views expressed in his tweets on 25 April 2015
were his views and that they were contentious. McIntyre regretted any attribution of his views to SBS
and acknowledged that SBS was drawn into controversy following the expression of his views.
186 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
There are statutory protections that can protect an employee’s trade union
activity or political opinions.615 Employees have statutory rights to comment about
work even if the employer considers these comments breach their social media
policy. The law in Australia is unclear because it has not evolved to clarify these
online work-related discussions. Policy restrictions on speech that broadly relate to
working conditions and job performance raises issues as to whether the directive is
reasonably proportionate to the harm that may arise from that user’s online speech.
Employees (or their unions) can protect their own autonomy interests on social
media but to do this, employees and employers will need further clarification in the
law. Employees can, to some extent, scrutinise the enforceability of their own
organisation’s social media policy directives to ensure they are lawful and reasonable
policy directives that remain within the employment scope and broad considerations
of reasonableness. With respect to employee’s protecting their autonomy in speech
other than general speech, such as political or trade union speech, the law is yet to
reconcile the scope of these protections on social media. Employees that challenge
their dismissals based on speech protections under the Fair Work Act 2009 (Cth) may
limit harsh, unjust or unreasonable dismissals and necessitate employee
involvement616 in policy development.
5.8 Employee Policy Involvement
Employee involvement in policy development may protect autonomy in speech
and preserve employee engagement on social media. Greater employee involvement
in the policy-making process may counter the power imbalance and lead to more
balanced policy-making decisions. The quest for balanced policies raises an important
question as to how far employees can safeguard their statutory speech protections
without damaging employer interests as provided by the common law. One way is to
ensure social media policies reflect personal autonomy interests and this includes
safeguarding trade union activity and political opinion or activity. Social media
615 Fair Work Act 2009 (Cth) ss 351, 772(1)(f).
616 Helen Lam, ‘Social Media Dilemmas in the Employment Context’ (2016) 38(3) Employee
Relations 420, 434.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 187
policies that include these safeguards limit employer control over employee’s online
speech and the extent to which employers can protect brand reputation. The outcome
is that a company protecting its brand reputation is restricted to offending behaviour
that excludes employee protections of political opinion or union activity. The issue for
courts is to decide the scope of the political opinion protection and that opinion’s direct
connection with work. Drafting these protections into policies in this way ensures
greater balance for the protection of employer and personal interests. A principled,
rights based policy framework assists employers to preserve personal autonomy in
speech where restrictions on speech are justified at law. Chapter 6 outlines a policy
framework that supports a co-creative way in which employees can effectively engage
with employers.
5.9 Conclusion
This chapter answered the second sub-question of research question one: What
employee protections and obligations exist at law and to what extent does the law
require employees to comply with social media rules? I discovered that current legal
doctrine around employee freedoms and the uncertainty in employment law and
contractual agreements do not adequately preserve personal autonomy interests of
speech on social media. The extent to which an employer can supervise employees’
personal interactions to minimise risks in online contexts is unclear with both
employees and employers requiring more clarity in the law.
The Fair Work Commission adjudicates employee social media disputes and is
not currently equipped to resolve personal autonomy issues of speech and participation
in online spaces.617 First, the Commission acknowledges the effect an employee’s
social media comments can have on business reputation and harm, but the extent to
which an employer can supervise employees’ personal interactions to minimise online
risks is unclear. Employees owe their employers duties to avoid behaviour that causes
harm to business interests and only in exceptional circumstances will an employer be
617 See Thornthwaite, above n 419, 13. The author explains there is a shift in case law towards
safeguarding employee privacy for comments on password protected sites and employees expressing
their criticisms of working conditions on social media.
188 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
given an extended right of supervision over the private activities of employees.618
Employees are entitled to a ‘private life’619 but social media affordances that can
amplify harm can justify employer supervision in these spaces. An employee’s private
life in online spaces is likely unattainable because employers mitigating for such broad
exceptional circumstances legitimises their supervision over personal conduct. It
implies that employers, directly or indirectly, through voluntary reporting from fellow
employees are always supervising, or at least monitoring, personal conduct on social
media.
Second, the Commission has limited ability to adjudicate individual free speech
rights on social media that inhibit users advancing general speech issues in unfair
dismissal proceedings. There are no guarantees of freedom of expression in Australia.
Advancing free speech is limited as courts rely on interpretations of the Constitution
for guidance on certain speech rights. General speech concerns (excluding political
speech) are outside the Commission’s functions under legislation. Users sharing their
personal experiences and political views online to a much wider audience can
unintentionally harm business interests. While some employees in unfair dismissal
cases argued that their online speech should go unconstrained620 courts have ruled that
even if freedom of speech was an individual freedom, the right will not overrule an
employment contract. The blurring of work and private boundaries in online contexts
is a significant employment tension with public service and private employees. The
lack of clarity in Australian law is problematic for employees as there is uncertainty
about when employers can regulate their personal conversations on social media.
Ideally, the law will develop to support employees to manage their own identities and
boundaries. The benefits of legal clarity means that employees are more careful in
what they post on public accounts and an employer’s ability to take disciplinary action
against an employee is limited to where an employee posts to their private social media
accounts.
618 GrainCorp Operations Ltd v Markham (2002) 120 IR 253, 267.
619 Rose v Telstra [1988] AIRC 1592.
620 Little v Credit Corp Group Ltd [2013] FWC 9642; Pearson v Linfox Australia Pty Ltd [2014] FWC
446.
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 189
Last, these legal uncertainties do not preclude the Commission or the
Ombudsman from assisting parties to resolve competing social media tensions in other
proactive ways. For example, the entities can facilitate employee/employer
negotiations around the management of social media personal and professional
boundaries and provide advice or training in relation to these tensions. These proactive
strategies can contribute, and form part of, the entities’ desire to promote a co-
operative and productive workplace relations and the prevention of disputes.621
Employees have various ways in which to challenge policies, or indeed
dismissals, that resulted from their personal (mis)use of social media. One way is to
challenge the contractual enforceability of the social media policy; the other is to seek
a statutory remedy through an application under the Fair Work Act 2009 (Cth).
Employers can regulate employee behaviour through the enforcement of social media
rules to protect legitimate business interests and to mitigate risk for reputational harm.
Employers can enforce social media rules in one of two ways. First, employers can
enforce social media rules as promissory terms that form part of an employment
contract. As promissory terms, the parties may owe implied duties to each other.
Whilst the Barker case ruled that the implied duty of mutual trust and confidence did
not apply to Australian employment contracts and was silent as to whether good faith
existed, lower courts and tribunal decisions have generally found that employers owe
a duty of good faith to their employees. The notion that good faith exists in these lower
courts suggests that employers should draft social media rules in a way that will not
adversely affect employees’ personal interests in online spaces. Employees may seek
an action in breach of contract where terms that constrain their social media use breach
the employer’s good faith.
Second, social media rules as stand-alone policy directives are separate from the
contractual agreement and are less likely considered express contractual or promissory
terms. They are, at best, guidelines622for preferred behaviour. Employees must
nevertheless obey these directives as they are lawful and reasonable. Directives are
621 Fair Work Act 2009 (Cth) s 576(2)(aa).
622 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, [62] where a policy was
found to be part of an employment contract and not a directive for employees to obey.
190 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
lawful if they fall within the scope of the employment contract, whilst reasonableness
is a more flexible test. Reasonableness can refer to appropriate limits of managerial
authority or proportionality623 when an employer gives an employee a direction that
relates to private conduct. The broad considerations of the duty to cooperate sheds
some light on what is reasonable but an employer has no right to control or regulate an
employee’s out-of-hours conduct beyond these vague limits.
Reasonableness in the context of personal social media use means policy
directives will not limit interactions that are unlikely to cause the business harm and
interfere with an employee’s personal autonomy interests. Employers enforcing social
media rules in these circumstances breach contract if the rules restrict speech that does
not have a connection with work, or speech that does not harm the employment
relationship. Some examples of policy directives, particularly those that mandated a
work connection on personal accounts, tested the limits of lawfulness and
reasonableness. If an employer disciplines or terminates the employee for not
complying with the directive, the employee may argue that the directive is
unenforceable which can give rise to contractual rights and a remedy for employer
breach of contract.624
The second way employees can challenge their dismissal in relation to their
social media (mis)use and breach of policy is through statutory applications made
under the Fair Work Act 2009 (Cth). Employees can seek remedies against employer
directives that are potentially unlawful and unreasonable. Where an employee’s
dismissal occurs because of their social media (mis)use that potentially breaches the
firm’s policy, the employee may seek a remedy – for example, reinstatement – through
Fair Work Act 2009 (Cth) applications.
In unfair dismissal claims, an employee’s breach of policy may not always
constitute a valid reason for dismissal. Mitigating factors in dismissal cases include a
623 McManus v Scott-Charlton (1996) 70 FCR 16, 30; ALR 637.
624 Employer breach of contract may also apply where the clause is an express term of a contract that
may breach the employer’s implied duty of good faith to not harm employee interests. See Morton v
Transport Appeal Board [No 1] (2007) 168 IR 403, 435 [201].
Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal 191
lack of evidence that an employee’s post caused the firm damage,625 an employee’s
unblemished employment record, or an employee’s commitment to training.626When
considering reinstatement, the Commission can consider factors including the impacts
of technology on work.627 These factors demonstrate the degree of uncertainty to
which the Commission could adjudicate employee breaches of a policy.
In adverse action or unlawful termination claims, the extent to which statutory
provisions protect political speech on social media – such as trade union or political
speech – remains an unresolved area at law. Policy directives that limit these speech
interests are problematic because they infringe employees’ statutory speech
protections relating to trade union activity or political opinion. The Act provides
general protections including employee political opinions, but the law is yet to
determine the scope and limits of that protection in the context of social media. Two
recent employment disputes involving individual political opinion or activity on
Facebook and Twitter have led to the standing-down or dismissal of employees. As
these disputes appear to have been resolved through private conciliation without the
Commission’s adjudication of the issues, the law remains unsettled to the extent to
which general protections safeguard an employee’s personal political opinion on social
media.
Current legal doctrine and some employer practices do not adequately preserve
personal autonomy in speech on social media and this is due to a lack of legal certainty.
Employees (or their unions) can protect their own autonomy interests on social media
but they will need further clarification in the law. The legal uncertainty does little to
assist employees in protecting their speech interests on social media. Similarly,
employers, when drafting social media policies, need to ensure directives do not over-
reach the control over personal speech that falls outside employee obligations. How
far employees can safeguard their statutory speech protections without damaging
employer interests is unclear. Social media policies that include employee protections
– such as political opinion and union activity – could limit employer control over an
employee’s speech in online spaces. This places some limits on the extent to which
625 Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358.
626 Atfield v Jupiters Ltd (2003) 124 IR 217.
627 Faulkner v BHP Coal Pty Ltd [2014] FWC 9330.
192 Chapter 5 Employee legal rights: enforceability of social media rules and contesting dismissal
employers can lawfully protect their brand reputation. I conclude by suggesting that
employees should contribute to policy development in a more meaningful way to
minimise harsh, unjust or unreasonable dismissals and help formulate directions that
are lawful and reasonable.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 193
Chapter 6 A Policy framework based on
the communicative tenets of
Corporate Social
Responsibility
Chapter 3 discussed how an employer’s level of control over personal
interactions on social media facilitates new concerns for personal autonomy, and
business risk and liability. Chapter 4 described how some example social media policy
directives inhibit an employee’s use through usurping user identity preference,
participation, and some forms of speech – particularly political speech – that were
ultimately detrimental for personal autonomy. Employer directives that usurp identity
preference significantly affect an employee’s ability to make sound choices in how
they manage their personal and professional boundaries. In reconciling competing
tensions of personal autonomy interests and employer control over risk, Chapter 5
highlighted legal uncertainty and the inadequacy of current legal doctrine and
employer practices to preserve personal speech interests on social media. While Fair
Work entities adjudicate employee disputes, they are not currently equipped to protect
personal autonomy interests on social media. There is scope for these entities to do
more to improve clarity in the law and promote more co-operative workplaces.
This thesis has discussed ways in which employees can protect their autonomy
interests. By focussing on social media rules that exist as policy directives, employers
have implied obligations at common law to ensure the directives are lawful and
reasonable. Similarly, employees owe their employers obligations not to harm the
firm’s business interests. Some example policy directives challenged the limits of
reasonableness and the extent to which employers could infringe on personal
autonomy interests. While there are justifications for employers to limit general
speech, restrictive policy directives that limit speech related to one’s work or the scope
of one’s political opinion remains an unresolved area at law. In the absence of any
social media guidelines, industry standards, or judicial interpretation of how
194 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
employers could draft their policies to safeguard employees’ interests, the common
law largely dictates some limits of employer control over personal conduct. How far
employers can control personal behaviour in online contexts means that directives
should not limit employees’ interactions that are unlikely to cause the business harm
and interfere with an employee’s protected speech interests in online spaces. I
foreshadowed that greater employee involvement could facilitate a more rights based
approach to policy-making that would assist employers to preserve personal autonomy
where restrictions on speech were justified at law.
This chapter proposes a policy framework that minimises restrictive directives
that constrain individual speech in ways that can preserve personal autonomy online.
I answer the second research question: How should personal use of social media be
regulated in an effort to achieve greater autonomy in online speech? In addressing this
normative question, I explain how a particular model of CSR – communicative tenets
of Corporate Social Responsibility (CSR) can preserve certain kinds of employee
speech and help employers balance their legal obligations in managing risk and their
moral obligation to do more to preserve personal autonomy in speech. The five
communicative tenets of CSR can reconcile employee and employer communicative
interests because these tenets reflect a moral obligation for employers to do more than
what is legally required when making policies that dictate employee behaviour.
Employers adopting better policies can help manage their corporate risk and minimise
overly restrictive policies that are harmful for employee autonomy interests. By
applying and extending the underlying principles of communicative CSR that is
referenced to Australian legislation and common law principles, I show how the
proposed policy framework empowers employers to do more to maintain personal
autonomy in speech that goes beyond regulation that mitigates for risk. I acknowledge
the limits of the framework but also suggest the benefits in the ways in which
employers and employers can better manage their online risk. I suggest a way in which
the law can help sustain social media rules that can benefit from external oversight and
increased engagement with other actors.
6.1 Introduction
This chapter explores how communicative tenets of Corporate Social
Responsibility (CSR) and its implementation can assist employers to do more to
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 195
preserve personal autonomy in speech on social media that go beyond that of mere
legal compliance. The research has shown the potential for restrictive policy directives
to usurp users’ online identity preferences, participation, and speech, as well the legal
enforceability of these rules against employees. First, I propose that instead of
focussing exclusively on business risk, employers should also consider the social norm
that the law and policies should be obeyed, mutually agreed upon, and be legally
enforceable. I propose that businesses need a new policy framework to evaluate
employer risk factors that can also balance personal autonomy interests and reduce
overreach. Second, I explain that the challenge for employers is how to reconcile the
legal constraints in managing risk with the moral obligation to do more to protect
personal autonomy. Then, I propose the five communicative tenets of contemporary
CSR can help employers in ways that can reimagine the policy-making process that
best reflects the social media space and can help maintain personal autonomy in
speech. I suggest that a CSR communicative framework has principles that extend to
Australian legal principles and can inform policy best practice in a more principled
way. Next, I demonstrate what a policy framework, informed by the communicative
tenets, could look like, followed by an explanation of why less prescription is preferred
in social media policies. I conclude that employers can significantly improve their
approach to social media policy-making by implementing a principled, rights based
policy framework as part of their overall organisational social media governance.
Given the limits of the CSR approach to policy development, I speculate there is a role
for law in terms of delegation and monitoring the compliance through enforced self-
regulation. Enforced self-regulation can assist policy sustainability in a way that aligns
corporate behaviour with wider social goals of protecting personal autonomy.
6.2 Restrictive Directives Undermine Established Norms
Restrictive policy directives provide an insight into the way in which these
directives, if obeyed, can cause serious harm to employee autonomy interests. Some
policy directives limit an employee’s ability to manage their own boundaries and
constraints on speech. Consequently, these directives likely enhance the blurring of
employees’ personal and work boundaries. The problem for employers that attempt to
regulate online behaviour in this way, is that social media rules can clash with existing
online norms. Successful laws – or, in this case, social media directives in
196 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
organisational policies – normally entrench existing norms, clarify any uncertainties
or ambiguities, or reinforce developing norms.628 Employer policy directives that
hinder employees overall use of the social media space are in danger of setting new
norms of online behaviour that are incongruent with existing norms in how users
participate and manage their identities and audiences. Employers attempting to
regulate behaviour629 in this way are ignoring employee’s personal autonomy interests
on social media.
I propose that employers should focus on influencing agreed standards of
employee behaviour, rather than enforcing mechanisms that seek to control
employees’ interactions that mitigate for risk. The law does not operate as a control
mechanism in how we socially engage with our peers in the physical world – we cannot
expect that level of control over our interactions in online spaces. In setting standards
through social media policies, employers can take advantage of the ‘social norm that
laws should be obeyed’630 because directives are likely to be enforceable if: employees
contribute input and mutually agree to directives, directives are legally enforceable
and reasonable, and speech restrictions are justified at law.631 I favour this approach as
opposed to employers framing social media directives solely around perceived
reputational or corporate risk632 to the detriment of their employees’ personal
autonomy interests. I base my proposal on the notion that when regulators are
determining laws for the online space, the main focus should not be about control, but
about achieving the ‘proper balance between control, deterrence, sanctions and norm-
setting so as to achieve their aims… and the cyberspace communities of which the user
is a member.’633 Employees are likely to reject restrictive directives in policies that not
only seek to control their personal interactions in networked contexts, but also conflict
with how an employee accepts established online norms.634 Just as employees can
628 Chris Reed, Making Law for Cyberspace (Oxford University Press, 2012) 12.
629 Ibid 187. In regulating cyberspace, Reed suggests that the cyberspace actor’s perspective can often
be ignored.
630 Ibid 242.
631 Rose v Telstra [1998] AIRC 1592.
632 Stohl et al., above n 60.
633 Reed, above n 628, 16.
634 Ibid 105.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 197
agree to policies that regulate their behaviour in the physical work space that do not
attempt to constrain all types of personal interactions and speech, rules or restrictive
directives that impose a different set of obligations in online spaces does not mean that
employees will adopt these rules. The same example policies from Chapter 4
highlighted potential harm for personal autonomy and a shift in boundaries, whereby
employers have the ability to control employees’ communicative freedoms in online
spaces. This employer control invades employees’ private communicative spheres that
can hinder an individual’s interests as a citizen in online ‘public arenas of
citizenship.’635 In general, the shifting boundaries that invade private spheres can
jeopardise personal autonomy interests. Employees will benefit from a new policy
framework that limits the extent to which employers can constrain the content of
personal speech in online contexts but, at the same time, has the capacity to protect
employer interests.
6.3 Contemporary Corporate Social Responsibility (CSR)
Employers can benefit from the adoption of a modern approach of Corporate
Social Responsibility (CSR) in which business communication is a fundamental
mechanism between the firm and its stakeholders. CSR is an ambiguous and ill-defined
concept that has evolved within economic, political, historical, social and
technological circumstances. CSR is predominantly the preserve of larger firms and
there are many reasons why these firms engage in CSR636 that support more long-term
635 Whelan et al., above n 68.
636 Lammertjan Dam and Bert Scholtens, ‘Does Ownership Type Matter for Corporate Social
Responsibility?’ (2012) 20(3) Corporate Governance: An International Review 233, 234. For
example, management may want to build their reputation as a good citizen, or CSR might be a CEO’s
strategic choice to generate support from stakeholders to reduce the probability of a CEO turnover in a
future period, or firms might use CSR to reduce conflicts of interests between managers and
stakeholders.
198 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
profits,637 but critics have questioned the unrealistic expectations of CSR.638 The CSR
literature is diverse and contested but there is evidence to support the idea that
corporations have responsibilities beyond profit making. For example, there are
various national and international CSR initiatives dealing with issues of sustainability,
transparency, community engagement and human rights.639 There are also common
themes around stakeholder involvement that includes a firm’s employees.640
The traditional view is that CSR actions are voluntary; that is, they have a
responsibility for the common good and go ‘beyond what is legally required’.641 The
traditional business case view of CSR transformed in the late 19th century where large
corporates focussed greater attention on improving employee welfare and protecting
individual freedoms in addition to making a profit for stakeholders. This ‘social
contract’ conceptualisation of CSR included employees’ working conditions, freedom
of speech, and rights to privacy protection within the organisational context.642 CSR
has since evolved into a third generation that retains the importance of employee rights
but expands financial, social and communicative responsibilities within global
connectedness and collaboration to a more diverse set of stakeholders, including
government and non-government organisations.643 Communication is no longer
637 Barot C Gaurangkumar, ‘Cost Benefit Analysis of Corporate Social Responsibility (CSR)’ (2015)
8(5) Advances in Management 7.
638 David Henderson, Misguided Virtue: False Notions of Corporate Social Responsibility (New
Zealand Business Roundtable, 2001) 171. For example, the author forcefully argued against the way
in which CSR broke from traditional corporate value setting.
639 Jennifer J. Griffin and Aseem Prakash, ‘Corporate Responsibility Initiatives and Mechanisms’
(2014) 53(4) Business & Society 465, 467.
640 Whelan et al., above n 68. The author attributes stakeholder-centrism to Freeman’s seminal work
on stakeholder theory in his book, R. Edward Freeman, Strategic Management: A stakeholder
approach (Pitman, 1984).
641 Dam and Scholtens, above n 636.
642 Michael Stohl, Cynthia Stohl and Nikki Townsley, ‘A New Generation of Global Corporate
Responsibility’ in Steven May, George Cheney and Juliet Roper, The Debate over Corporate Social
Responsibility (Oxford University Press, 2007) 30.
643 Øyvind Ihlen and Juliet Roper, ‘Corporate Reports on Sustainability and Sustainable Development:
“We Have Arrived”’ (2014) 22(1) Sustainable Development 42, 47.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 199
instrumental, but relational and dialogic.644 Corporations, along with civil society and
government are responsible for setting, implementing and developing the norms and
values of contemporary society.645
CSR represents the ongoing dialogue and activities regarding the financial,
social, communicative and environmental expectations and responsibilities of
corporations towards their communities and stakeholders.646 Stohl et al., articulate a
narrow model of CSR for business communication. They assert that social media
provides dynamic and far-ranging opportunities for business in communicating their
CSR efforts due to platform affordances (visibility, persistence, editability,
association) that enable informal, interactive and visible CSR communication among
employees, management, customers and the general public in novel ways.647 They
argue that social media policies themselves are material manifestations of a company’s
CSR repertoire, culture, strategy, and underlying belief systems that provide a
powerful text for understanding communicative tensions and dynamics embedded in
contemporary notions of CSR.648Social media can become a model of CSR
communication in itself whereby it provides a means to engage, organise and create
dialogue among global stakeholders and corporate actors. The combination of the
developments of CSR over time has established the modern contemporary notion of
CSR that now draws upon five central communicative tenets:
a. Freedom of Speech
b. Collective Information Sharing
c. Respecting Differences
d. Engagement and Stakeholder Dialogue
e. Transparency649
644 Stohl et al., above n 60.
645 Andreas Georg Scherer and Guido Palazzo, ‘The New Political Role of Business in a Globalized
World: A Review of a New Perspective on CSR and Its Implications for the Firm, Governance, and
Democracy’ (2011) 48(4) Journal of Management Studies 899, 909.
646 Stohl et al., above n 60.
647 Ibid.
648 Ibid.
649 Ibid.
200 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
6.3.1 Five communicative tenets of CSR
Table 6.1. below shows the five communicative tenets of CSR and highlights the
foundational principles and how international human and workers’ rights instruments
underpin these tenets.
Table 6.1. Five communicative tenets of modern CSR for business communication (adapted
from Cynthia Stohl et al., ‘Social Media Policies: Implications for Contemporary Notions of
Corporate Social Responsibility’ (2015) Journal of Business Ethics)
Communicative
tenet
Foundational principle International sources
Freedom of
Speech
Businesses should support and respect
the protection of internationally
proclaimed human rights including
freedoms of speech, expression and
association regardless of the region of
the world in which they operate and the
position of the stakeholder
Article 19 of Universal
Declaration of Human
Rights
Collective
information
Sharing
The responsibility of organisations is to
explicitly permit employees to engage
in concerted activities (e.g sharing
information about work conditions) for
the purpose of mutual aid or protection
Principle 3 of the
United Nations Global
Compact: European
Commission’s (2010)
Policies on Worker’s
Rights; Articles 20,23
of the Universal
Declaration of Human
Rights
Respecting
Differences
Respect different values, opinions,
beliefs and attitudes of stakeholders that
engage with an organisation.
Discrimination in any form is
unwarranted
International
Convention on the
Elimination of All
Forms of Racial
Discrimination;
Convention on the
Elimination of All
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 201
Forms of
Discrimination Against
Women
Engagement and
Stakeholder
Dialogue
Through dialogic engagement,
stakeholders’ views and perspectives
need to be taken into account in the
negotiation of the responsibilities and
expectations of organisations
The European Business
Network for Corporate
Social Responsibility;
Principle 10 of the Rio
Declaration On
Environment and
Development
Transparency Transparent communication not only
inhibits deception and corruption but
enables the fair negotiation of
corporations’ and employees’
responsibilities
Principle 10 of the
United Nations Global
Compact (2015)
The international instruments show personal autonomy interests are important
and there is potential to protect them through CSR communicate tenets. These tenets
reflect a co-creation650 framework whereby employers, through dialogic engagement
with employees, should permit and respect forms of employee speech. This co-creation
framework is in direct conflict with employers who base their policy-making on a
business risk model that ignores employee speech protections for their own business
interests. This framework facilitates employers’ acceptance of forms of employee
speech and is the point of difference when compared to the example policy directives
that potentially obstructed the way in which users participated and interacted with their
online audiences. For example, some restrictive directives prohibited certain kinds of
employee speech relating to work.651 Instead of employers directing how their
650 Stohl et al., above n 60. In that study, three frames of social media policy were identified, business
interests, risk protection and co-creation.
651 See Appendix G La Trobe Social Media Policy, Appendix I Peter Novelli Social Media Policy,
Appendix C Adidas Social Media Policy that all generally directed that employees will not post any
content that is ‘inflammatory, or… could bring the company into disrepute or …comment on any
work-related matters.’
202 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
employees will interact with their online audiences, employers should be using
positive language that supports CSR founding principles that highlight what kind of
employee speech is acceptable. Ultimately what this framework shows is that socially
responsible employers can do more to safeguard personal autonomy in speech on
social media.
6.3.2 Incorporating legal and moral obligations to protect personal autonomy
Employers have a moral obligation to protect personal autonomy in speech that
extends beyond the minimum legal framework and their obligations at law. According
to modern contemporary CSR, ‘employee communicative rights are important as the
theory expands financial, social and communicative responsibilities within global
connectedness.’652 Socially responsible organisations can protect various forms of
employee speech, but can also ensure their directives do not hinder employees’
communications within the global connectedness of digital platforms. The challenge
for employers is how to balance the legal constraints in managing business risk with
the moral obligation to protect personal autonomy in speech. One way to incorporate
employer legal and moral obligations is to outline the legal obligations that exist for
employers in making lawful and reasonable policy directives, coupled with employee
obligations owed to their employer. The negatively framed directives that restrict
personal speech on social media to mitigate business risk have the potential to breach
employer obligations. Second, an employer’s moral obligation in safeguarding
personal autonomy interests stem from principles that underpin CSR communicative
tenets that relate to individual rights. Some of these rights can extend to Australian
domestic law that counters the negative framing of what employees will ‘not do’, with
a positive framing of what employees ‘can do’ by way of their speech communications
on social media. The ways in which this framework assists employers to preserve
personal autonomy in speech draws upon:
a. the legitimacy of policies and the circumstances in which
restrictions on general speech are justified as discussed in
Chapter 5 ; and
652 Stohl et al., above n 60.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 203
b. how employee communicative rights that exist in some CSR
tenets can extend to domestic Australian law.
6.3.3 Legal compliance in regulating personal speech on social media: ‘must
not do’
According to the common law as it applies to personal speech on social media,
employers are required to frame their social media policies according to their implied
obligations. That is, an employer’s minimum legal compliance in setting standards of
personal behaviour through social media directives hinges on whether the directions
are lawful and reasonable.653 Chapter 5 outlined employees have an implied duty of
obedience and are to comply with employer instructions, provided those instructions
are lawful and reasonable.654 A breach of contract would occur in circumstances where
employer directions are unlawful and unreasonable.655 Restrictive policy directives
that potentially inhibit personal social media use discussed in Chapter 4 are examples
of where an employer has the potential to over-reach their control over an employee’s
online identity preference, participation, and speech. However, where restrictions on
general speech content were proportionate to potential business harm, socially
responsible employers can do more to preserve personal autonomy in speech. The
communicative tenets of CSR demonstrate that policy directives framed in a positive
way can provide clarity regarding what employees can comment about on social media
without fear of employer reprisals.
6.3.4 CSR moral obligation in protecting personal autonomy in speech: ‘can
do’
Employer directives that reflect clarity in employee speech protections can ease
policy ambiguity and protect personal autonomy. The law informs us that employers
653 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601.
654 Ibid 621-622.
655 Kelly v Alford [1988] 1 Qd R 404 where the employer instructed their employees to drive an
unregistered and uninsured vehicle.
204 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
can legitimately issue restrictive policy directives that attempt to regulate forms of
personal speech that can be harmful for the employment relationship and business
interests.656 But, the law does not prohibit all employee speech that can potentially
cause business harm. Employee communicative rights (amongst other stakeholder
rights) are important within global connectedness657and, by virtue of the five
communicative tenets of CSR, certain kinds of employee speech rights exist under
international sources that underpin some tenets. See Table 6.1.
While the CSR model shows employee speech rights exist in international
human and worker’s rights instruments, some of these rights extend to Australian
domestic legislation. For instance, in terms of the first communicative tenet of free
speech, Article 19 of the Universal Declaration of Human Rights658 states:
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
The CSR freedom of speech tenet places this universal right in the corporate context
where ‘everyone’ includes employees as business stakeholders:
Businesses should support and respect the protection of internationally proclaimed
human rights including freedoms of speech, expression and association regardless of
the region of the world in which they operate and the position of the stakeholder.
In Australia, there are certain categories of employee speech protections that
exist in Commonwealth and State laws that are relevant to directives in social media
policies. In Chapter 5 I discussed the protection of employee speech rights in
Commonwealth and state anti-discrimination legislation and explained how there is no
individual free speech right that exists in Australian domestic law.659 The High Court
656 Rose v Telstra [1998] AIRC 1592.
657 Stohl et al., above n 60.
658 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg,
UN Doc A/810 (10 December 1948) art 19.
659 No Bill of Rights in Australia however in Victoria, the Charter of Human Rights and
Responsibilities Act 2006 (Vic) s 15 provides for Freedom of Expression amongst other rights,
however they are not absolute rights. In the United Kingdom, unfair dismissal laws must be
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 205
found there is no implied right of freedom of communication in the Constitution;660
however, there is an implied right of political communication.661 I highlighted that for
most private sector employees their political opinion and trade union activity are rights
that exist as general protections,662 as a remedy to wrongful termination,663 and as
protected attributes in most state anti-discrimination legislation.664 Restrictive speech
directives are legal grey areas in terms of their application to conversations on public
social media platforms, but if employers structure these directives in a more positive
and permissive manner, they could reduce ambiguity regarding acceptable employee
comments. General protections under the Fair Work Act 2009 (Cth)665can encompass
the Collective Information Sharing CSR tenet where it is the responsibility of
organisations to explicitly permit employees to engage in concerted activities – for
example, sharing information about work conditions – for the purpose of mutual aid
or protection. A simple positive directive of what an employee ‘can do’ on social media
could be:
You can post your opinion as an individual or You can talk about your work except
when comments can damage the firm. For example: Do not disclose the firm’s
confidential information or IP.
The Respecting Differences CSR tenet relates to speech content that has a
connection to work and an individual’s general speech. This tenet demonstrates how
employers can instil in stakeholders the value of respecting opinions, beliefs and
attitudes among other stakeholders and towards each other. The International
interpreted in accordance with the Human Rights Act 1988 (UK) sch 1, art.8(1) which provides
protection of an individual’s right for private and family life.
660 Miller v TCN Nine Pty Ltd (1986) 161 CLR 556, [11].
661 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1977) 177 CLR 106; Nationwide
News Pty Ltd v Wills (1992) 177 CLR 1.
662 Fair Work Act 2009 (Cth) s 351.
663 Ibid s 772(1)(f).
664 Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act
1991 (Qld); Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (SA);
Anti-Discrimination Act 1998 (Tas); Discrimination Act 1991 (ACT); Anti-Discrimination Act (NT).
665 Fair Work Act 2009 (Cth) s 346, 347 Industrial activities.
206 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
Convention on the Elimination of All Forms of Racial Discrimination666 and the
Convention on the Elimination of All Forms of Discrimination Against Women667
warns employees of their obligation with respect to discriminatory behaviour towards
other stakeholders and each other. These international rights extend to domestic
legislation668 and as anti-discrimination, sexual harassment and anti-bullying
organisational policies. The CSR tenet highlights how employers can foster respectful
speech among its employees and their communications with others. As discriminatory,
harassing or bullying behaviour can take place online, employers can facilitate positive
communications amongst employees through specifically addressing these types of
behaviours in their social media policy. Consequently, I have demonstrated that by
adopting a principled approach to the first three communicative tenets, employers can
meet their minimum legal compliance in protecting employee speech that can enhance
clarity surrounding acceptable speech on social media. Table 6.2 shows how these
tenets extend to minimum employee speech protections in Australia.
666 International Convention on the Elimination of all forms of Racial Discrimination, opened for
signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 3.
667 Convention on Elimination of All Forms of Discrimination against Women, opened for signature
December 18, 1979 GA res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46; 1249
UNTS 13; 19 ILM 33 (1980).
668 See Fair Work Act 2009 (Cth) s 351 discrimination protections, s 789FC Anti-bullying provisions
and various Commonwealth and State Acts including the Age Discrimination Act 2004; the Disability
Discrimination Act 1992; the Racial Discrimination Act 1975;the Sex Discrimination Act 1984; the
Anti-Discrimination Act 1977 (NSW); the Equal Opportunity Act 2010 (Vic); the Anti-Discrimination
Act 1991 (Qld); the Equal Opportunity Act 1984 (WA); the Equal Opportunity Act 1984 (SA); the
Anti-Discrimination Act 1998 of (Tas); the Discrimination Act 1991 (ACT); the Anti-Discrimination
Act (NT).
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 207
Table 6.2. Three Communicative tenets of CSR and their relationship to minimum Australian
legal principles
Communicative
tenet
Minimum Australian legal principles that protect
categories of speech
Freedom of
Speech
Protection of employees’ political speech: No individual
right to free speech; however, employee speech in terms of
political opinions may have protection under the Fair Work
Act 2009 (Cth) s 351 (adverse action) or s 772(1)(f) and
under state and territory Anti-Discrimination Acts except
New South Wales and South Australia. The protection of
employee speech in relation to working conditions exists in
those same sections and ss 346, 347 (trade union activity).
Collective
Information
Sharing
Protection of employees’ working conditions speech: Fair
Work Act 2009 (Cth) ss 346, 347 (industrial activities).
Organisations are obliged to permit employees to engage in
industrial activities relating to their work conditions.
Respecting
Differences Protection of employees from other employees/stakeholders:
Employers can be held vicariously liable for their employees’
conduct; i.e. Anti-Discrimination legislation. Fair Work Act 2009
(Cth) s 351 (discrimination protections), s 789FC (anti-bullying
provisions) and various Commonwealth and state acts. These acts
include: Age Discrimination Act 2004 (Cth); Disability
Discrimination Act 1992 (Cth) ; Racial Discrimination Act 1975
(Cth); Sex Discrimination Act 1984 (Cth); Anti-Discrimination Act
1977 (NSW); Equal Opportunity Act 2010 (Vic);
Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984
(WA); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act
1998 (Tas); Discrimination Act 1991 (ACT); Anti-Discrimination
Act (NT).
208 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
The CSR tenets show there is more employers can do to protect employee speech
aside from meeting their minimum legal requirements. The CSR tenets are not limited
to defined categories of protected speech in Australia. CSR tenets are much wider in
terms of informing businesses that they should, for example, support employees
talking about their private lives on social media. Table 6.1 shows that at a minimum,
there are legal protections for employee trade union, political speech and non-
discriminatory speech. A communicative CSR requirement extends respecting
differences which means more than not discriminating on prohibitive grounds. While
the first three tenets originate from speech rights and legal principles, the remaining
tenets of Engagement and Transparency can assist employers when negotiating and
drafting social media policies.
6.3.5 Engagement and stakeholder dialogue and transparency
The engagement and transparency tenets demonstrate how employers can make
improvements in the way they address employee speech interests on social media. The
first three tenets illustrate how Australian legislation supports the protection of various
categories of speech rights. The fourth and fifth tenet have little to do with employee
speech rights per se, and more about how the communicative tenets encourage
employers to engage in transparent dialogue with employees (or their unions) to
support their moral commitment to protect personal autonomy in speech and avoid
conflict.
The Engaging with Stakeholders tenet demonstrates a way in which employers
can do more to facilitate meaningful dialogues and negotiations with their employees
to inform the development of insightful social media policy directives. Stakeholder
engagement explains how businesses need to consider their stakeholders’ views and
perspectives in the negotiation of responsibilities and organisational expectations.
Outlining employees’ responsibilities in this way can underpin implied common law
obligations of good faith. As explained in Chapter 5 , the Barker case669 was silent as
to whether the implied obligation of good faith applied to employment contracts.
Lower courts have proceeded on the basis that the implied obligation of good faith
669 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [104].
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 209
imports notions of fairness and ‘what is required is a balancing, in good faith, of the
interests of the employer against adverse effects it may have on the employee.’670
Employers that engage with employees in policy development provide the firm with
an understanding of the importance of an individual’s digital identity and full
participation in networked spaces.671 This insight informs a policy framework that is
less controlling of an employee’s personal interactions that may harm personal
autonomy interests. Another reason why stakeholder engagement can facilitate a more
insightful policy lies in the opportunity for employers to reinforce employee
expectations through training or outlining some examples of what kinds of comments
can harm the firm’s interests. More importantly, ongoing employer/employee dialogue
can be a method by which parties can negotiate competing tensions in ways that satisfy
both parties’ interests.
The last communicative tenet of transparency demonstrates how employers can
communicate with employees in a more transparent way. Positive transparent
communication not only inhibits deception and corruption, it enables clear
understandings of corporate and employee roles. In terms of policy development,
employers can adopt both employee dialogic engagement and transparency that can
benefit all stakeholders equitably. Employers that take a positive transparency
approach can ‘balance informational and positional power that fosters genuine
democracy, informed decisions, currency of data, connection, communication, timely
feedback, and equity and balance.’672 Based on shared knowledge of mutual benefit,
670 Morton v Transport Appeal Board [No 1] (2007) 168 IR 403, 435 [201].
671 Jennifer Jones, ‘Developing Social Media Policies: A Team Learning Approach’ (2015) in Cases
on Strategic Social Media Utilization in the Non-Profit Sector (Florida, 2015). An example of dialogic
engagement whereby the Vista Community Clinic established a technology outreach committee that
included employees from a variety of programs and departments who meet regularly to discuss
strategies, identify challenges and brainstorm solutions for social media use. The team approach to
social media use has allowed the organisation to manage tensions between the organisation and a
highly fluid social media environment to minimise risk in high risk patient outreach and garner
employee confidence in the policy.
672 Reiman, above n 216, 134.
210 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
transparency in allowing employees to participate in policy-making can clarify
employee responsibilities and avoid business harm.
6.3.6 A co-creative policy framework
CSR communicative tenets can inform social media policy best practice in a
more principled way. The benefit of this approach is that organisations can implement
policies within minimum legal constraints of lawfulness and reasonableness and, at the
same time, protect personal autonomy in speech. This proposed model can greatly
assist most organisations that currently have little guidance in drafting social media
policy guidelines in a legally compliant and balanced way. The business advantages
of this framework include: a minimum standard of legal compliance as required by
CSR; a moral consideration of personal autonomy in speech; and greater opportunity
to discuss employee roles and obligations as technology evolves and policies adapt to
these changes. A policy that is informed by CSR communicative tenets establishes a
middle ground that lies on a continuum between policies that are modelled solely for
business risk that may contain restrictive directives, and where there is no social media
policy at all. See Figure 6.1. Table 6.3 outlines how employers could adapt their
policies to protect personal autonomy in speech that reflects the communicative tenets
of CSR. Ideally, employers should be supporting employees’ autonomy interests in
speech and only limit speech when there is clear harm to the employer’s interests.
Where there is a clear harm, employers can instigate disciplinary action against the
offending employee.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 211
Figure 6.1. Policy continuum of risk and employee autonomy
Protect
business
Protect
business &
employees
Neither interests
protected
Increase legal
risk
Increase conflict
Business risk
Policy/overly
restrictive
Outline
conduct that
is not
acceptable
CSR co-
operation
Policy
(legal and
moral)
Outline
conduct that
is acceptable
and not
acceptable
No social
media
policy
Little certainty
about
expectations,
rules and
boundaries
212 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
Table 6.3. Policy tips to enhance personal autonomy interests
CSR Communicative Tenet How employers can protect online personal autonomy
Free Speech
Collective Information Sharing
a. Remove policy directives that restrict an individual’s identity and work affiliations via disclaimers on personal profiles (see
Transparency below)
b. Re-instate an employee’s ability to use pseudonyms or remain anonymous in online interactions
c. The law protects employee political opinions and forms of general speech. The context of the political opinion and direct
connection with work may outweigh claims of damage to business reputation. Alternatively, in general speech, the employer
needs evidence of any ‘damage’673 to corporate interests suffered as a direct result of that employee’s speech. In essence,
proof of damage is required prior to any disciplinary action674
d. Remove policy directives that employees can perceive as limiting their work speech or union activity
Respecting differences e. Outline respect for stakeholders includes respect for co-workers and clients general speech that is not discriminatory or
bullying, breaches privacy and confidentiality of others, or speech that can harm business interests
Engaging with stakeholders/
Transparency
f. Identify that an employee engagement and consultation process was undertaken in the fair preparation, enforcement and
review of the organisation’s social media policy
g. Highlight follow-up staff training to reinforce worker responsibilities and review of policy
h. Restrict the use of work disclaimers to situations where an employee endorses the firm’s products and discourage personal
profiles from disclosing their affiliation with work in an effort to mitigate the ‘connection’675 with work
673 Fitzgerald v Dianna Smith t/as Escape Hair Design [2011] FWAFB 1422, [9].
674 Ibid.
675 Streeter v Telstra Corporation Ltd [2007] AIRC 679.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 213
While there is no ‘one-size-fits-all’ approach to social media governance, the
framework that incorporates CSR tenets demonstrates how organisations can
implement a policy that addresses the minimum legal and moral concerns of all its
stakeholders. In the absence of any clear guidance or rights based policy framework,
a policy that is informed by CSR communicative tenets need not be exhaustive.
Essentially, the framework requires some minimum legal compliance yet is flexible to
adapt to technological changes. A social media policy with less prescription allows for
greater flexibility to suit individual business models. Flexible frameworks provide
room for creative problem-solving676 but care needs to be taken as broad or ambiguous
provisions can attract a level of uncertainty as to their interpretation. Social media
policies require sufficient prescription to fulfil the employer’s legal compliance in
terms of speech protections, combined with a moral appreciation of protecting personal
autonomy. Employers need flexibility to confront complex social media issues without
incurring liability. I propose that employers can contribute to best practice by adopting
a principled, rather than a piecemeal approach to policy-making that avoids drafting a
lengthy document that includes every conceivable risk. The table below shows what a
basic CSR-based policy framework could look like with a view to reconciling
competing stakeholder interests.
676 Analogy made with flexibility of disaster plans from Erman Coskun and Dilek Ozceylan,
‘Complexity in Emergency Management and Disaster Response Information Systems (EMDRIS)
Proceedings of the 8th International Information Systems for Crisis Response and Management
Conference (2011).
214 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
Table 6.4. Proposed social media policy underpinned by communicative tenets of CSR
THIS POLICY DOES NOT FORM PART OF YOUR EMPLOYMENT
CONTRACT
THIS SOCIAL MEDIA POLICY APPLIES TO YOUR WORK AND
PERSONAL CONDUCT
TITLE 1: PURPOSE AND DEFINTIIONS
1. The purpose of this policy is to mitigate social media risk.
2. This policy applies to:
a. Official use of social media on behalf of the firm
b. Personal use
3. Definition of terms
4. Authorities
TITLE 2: EMPLOYEE USE OF SOCIAL MEDIA WHILST PERFORMING
WORK
1. Permissible use of social media while performing work
2. Identify as employee of the firm or an authorised member to represent the firm online
3. Protection of proprietary information, confidentiality, trade secrets
4. Responsible use of social media (with links to Internet Use Policy, Privacy Policy,
Confidentiality Policy)
5. Promotion and advertising of the firm online must be truthful and not mislead consumers.
Any promotional material must comply with Australian Consumer Law, National
Advertising Standards (ANAA), broadcasting regulations and platform policies.
6. Respect for all stakeholders, including customers and clients (with links to Anti-
Discrimination Policy, Sexual Harassment Policy, Anti-Bullying Policy)
7. Implement a crisis communication strategy when addressing damaging interactions.
TITLE 3: PERSONAL USE OF SOCIAL MEDIA
1. This policy applies to personal social media communications and the potential for personal use
to cause damage to the firm’s reputation that can breach contract
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 215
2. Reinforce obligations to maintain confidentiality of the firm, its customers, clients and staff.
3. Harassment and bullying of co-workers and external stakeholders is prohibited
4. Deter employees from affiliating with the firm unless they are commenting about the firm’s
products or services
5. Work disclaimers to be used when endorsing the firm’s products or services; preferably on the
specific post and not as a persistent and visible notation on an individual profile (except for
professional platforms such as LinkedIn)
6. No conditions or sanctions imposed in how employees wish to identify themselves online:
pseudonymous and anonymous accounts are permissible.
Personal opinion
1. A statement that this policy may infringe personal speech in situations where the personal
interaction forms a connection with the firm and damage has occurred as a direct consequence
of that interaction
2. A statement that even though statutory protections exist to preserve some forms of political
speech, cases will be considered in the context of the post and on a case-by-case basis.
Collective information sharing
Avoid language that may curtail employee speech regarding working conditions; for example, avoid
statements like ‘always speak positively about the company.’
Respect differences
Reinforce that respect for stakeholders, customers, clients, and co-workers apply outside of work hours
(with links to Confidentiality Policy, Privacy Policy, Anti-Discrimination Policy, Sexual Harassment
Policy, Bullying Policy).
TITLE 4: BREACH OF POLICY AND DISCIPLINARYACTION
A statement that potential breaches of this policy can lead to disciplinary action, including
termination. Potential breaches of the policy taking into account the degree of harm are decided on a
case-by-case basis.
TITLE 5: STAFF CONSULTATION
Engagement/Transparency
1. A statement that representative employees’ contributed input into the preparation and
drafting of this policy.
2. A statement that HR managers and staff representatives identified social media risks and
reconciled these with obligations to tailor a policy that aims to be fair for all stakeholders.
3. A statement that HR will endeavour to review the policy on a six monthly or annual basis
A statement that HR will endeavour to provide staff social media awareness training on a six monthly
or annual basis
216 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
6.3.7 Limits of a CSR policy approach
There are limits in adopting a flexible approach to social media policy
development. First, the core limit to a CSR policy framework is that it is aspirational
and voluntary. This thesis does not assume employers are benign in aiming for a
balance that favours their employees, given the various risks that can affect their
business interests. Many firms may not voluntarily adopt a policy framework that will
give them less control over how they discipline their employees for their social media
(mis)use. In the future, if firms do not take steps to adopt better policies on their own,
the law can intervene to raise policy standards. A CSR policy framework is a realistic
first step that can help employers manage their online risk, clarify employee/employer
expectations and protect business reputation. For employees, a well-defined and fair
policy can assist employees in their management of personal autonomy risks around
their identity and speech interests. The law can help employers strike a balance that is
more favourable to employees, but this will depend on the governance mechanisms
that exist in an organisation.
The second limitation of the framework is the limited research in protecting
employees’ interests in online spaces. The proposed framework has nuances of the
protection of employee rights on social media that are called for in similar academic
research in the regulation of blurred boundaries in online spaces. While there is little
scholarship that critically assesses the application of the CSR policy framework to
social media, there are similarities in terms of greater transparency and the
preservation of personal autonomy that may form the basis of an employee’s rights
agenda. For example, recent research into profiling – namely, ‘the collection of online
information for the purposes of evaluating prospective employees and monitoring
current employees’677 – called for an urgent rights-based agenda characterised by
transparency and reciprocity. This research revealed that rights around profiling are
‘one-sided and opaque with few codified boundaries.’678 The research claimed that a
rights-based approach could inform policy and regulation on the limits to surveillance
across organisational contexts and ‘help build community consensus and a greater
677 McDonald et al., above n 69.
678 Ibid 15.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 217
balance of interests between employees and employers.’679 Other research revealed a
publicity-rights approach to protect employee virtual identities and goodwill. This
research was a new lens with which to view legal ownership and employer control of
digital assets when an employee leaves the firm. There is value in relationships that is
at the core of whether there are proprietary interests at stake.680 An employer is likely
to demand the ongoing right to control employee communications but after the
employee leaves, the employee may wish to maintain the digital persona and maintain
the customer relationships. The research found the law was inadequate in dealing with
value that exists in an employee’s social media interactions.681 Instead, the research
argues publicity rights grounded in moral justifications, including the importance of
personhood through individual dignity and autonomy and the link between the self and
a right to control its presentation,682 can protect employee interests. Ultimately, a
‘publicity rights approach balances the employee’s professional and dignitary interests
against the employer’s commercial concerns.’683 What the recent research and this
thesis have in common is the exploration and identification of employee autonomy
interests on social media and finding innovative and creative ways in which to balance
these interests with business concerns.
6.4 A way forward: Organisational social media Governance
Uncertainty exists around the governance mechanisms that organisations deploy
to regulate personal use of social media. Governance is defined as ‘the organised
679 Ibid.
680 Park and Sánchez Abril, above n 2, 540.
681 Ibid 596.
682 Ibid 583-584. The right of publicity is a tort that takes a property-based view of the right to one’s
likeness, persona and reputation. The tort also has theoretical underpinnings in Lockean labor
considerations and economic rationales. 30 US states recognise publicity rights either through the
common law or by statute. The Restatement (Third) Of Unfair Competition § 46 (Am.Law Inst. 1995)
sets out the four elements of a right to publicity claim. 1. The defendant used the plaintiff’s identity 2.
For the defendant’s commercial (or other) advantage 3. Without the plaintiff’s consent 4. Causing
injury.
683 Ibid 596.
218 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
efforts to manage the course of events in the social system.’684 Much of what is meant
by governance relates to manipulating the elements of governance to achieve effective
and efficient management, or governance that works.685 Good governance can deliver
results through processes and institutions that meet accepted standards of justice and
due process.686 In this thesis, social media policies are a governance vehicle whereby
organisations respond to employee social media use within or outside the hours of
work.687 Organisations generally follow three approaches to governance mechanisms.
First, organisations have leveraged established governance mechanisms where policies
were generic and borrowed from existing communication policies. Second,
organisations have established new governance mechanisms where policies attempted
to establish new principles tailored for the social media environment. Third,
organisations have relied on the hierarchy and personal responsibility where a policy’s
main objective was to reduce unforeseen social media risk and emphasised employee
responsibility for accountability.688 These approaches to governance are outside the
scope of this thesis and are a limitation of the research. However, by drawing on the
second governance mechanism, I propose that employers can establish a new way to
regulate employee behaviour by adopting a CSR rights based approached that is more
suited to the social media environment. A co-created policy has the potential to clarify
what employees can and cannot comment about online. The reliance on an
organisation’s self-governance to undertake a new way to regulate personal social
media use requires supervision and monitoring from an external umpire.
6.4.1 Responsive regulation can oversee policy governance
External oversight and delegation is a way to ensure a firm’s compliance with a
CSR-based social media policy. While a policy can set parameters for employee
684 Scott Burris, Peter Drahos and Clifford Shearing, ‘Nodal Governance’ (2005) 30 Australian
Journal of Legal Philosophy 2.
685 Scott Burris, Michael Kempa and Clifford Shearing, ‘Changes in Governance: A Cross-
Disciplinary Review of Current Scholarship’ (2008) 14(1) Akron Law Review 10.
686 Ibid 11.
687 Vaast and Kaganer, above n 80, 81.
688 Ibid 91.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 219
behaviour and expectations that are consistent with the organisation’s culture while
reflecting emerging societal norms,689 external monitoring from a regulator such as the
Fair Work Ombudsman (FWO) does not give the state a monopoly over the way in
which employers set these rules. Organisations can implement a CSR informed policy
through a mix of undertakings and legal constraints. The five communicative tenets of
CSR show how employers can protect personal autonomy in speech through more
balanced policies, but the wider issue centres on how employers enforce and monitor
the firm’s compliance with these policies. Self-governance suggests that order does
not necessarily depend on the intervention of a regulatory authority that stands outside
the governable activities but ought to be legitimate when all actors affected take
responsibility.690 Where an employer fails, or is at risk of failing, in not enforcing a
principled policy, responsive regulation can be a way to ensure employer compliance.
Given the limits of a CSR policy approach, responsive regulation may be a way
to help safeguard employee autonomy interests. This thesis has shown ways in which
employer directives collapse the boundaries between home and work and can proscribe
private interactions on social media in ways that have adverse consequences for
personal autonomy interests. Responsive regulation may be a way to preserve
employee/employer online interests in a mutually beneficial way. In the past,
responsive regulation has applied to labour protection,691 consumer protection, and
financial regulation692 and is an ‘enforced self-regulation model’ that advocates a
hierarchical mix of persuasion and contingent sanctions of regulatory strategies of
varying degrees of interventionism.693 At the heart of responsive regulation are two
key ideas: regulatory delegation and the monitoring of that delegation with escalating
forms of government intervention.694 Regulatory delegation involves the government
689 Sanchez Abril et al., above n 15, 113-114.
690 Malte Ziewitz and Christian Pentzold, ‘In Search of Internet Governance: Performing Order in
Digitally Networked Environments’ (2014) 16(2) New Media & Society 306, 313.
691 Ian Ayers and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate
(Oxford University Press, 1992) 17-18.
692 Valerie Braithwaite, Kristina Murphy and Monika Reinhart, ‘Taxation Threat, Motivational
Postures, and Responsive Regulation’ (2007) 29(1) Law & Policy 137, 154.
693 Ayers and Braithwaite, above n 691, 35-36.
694 Ibid 158.
220 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
delegating regulator functions to private actors – public interest groups, industry
associations, firms, unions, independent professionals – with the aim that the
government harmonises regulatory goals with laissez-faire notions of market
efficiency.695 Regulatory delegation is underwritten by escalating forms of
government intervention in which a hierarchy of increasingly traditional forms of
regulation come into play if the delegation fails. How effectively an organisation self-
regulates determines the extent to which the state body intervenes to either enforce
sanctions or reward compliance. State intervention follows an enforcement or
regulatory pyramid structure696 that tries to strike a balance between advocating for
change by persuasion or punish offending firms through prosecution. See Figure 6.2.
The pyramid structure of intervention is justified for imposing sanctions because,
similar to employees having multiple personas as discussed in Chapter 2, a firm is not
just a unitary body seeking to maximise profit. A firm can have ‘multiple selves’ with
conflicting motivations for complying (or not) with their legal obligations and moral
duty.697 Regulatory enforcement that is responsive should lead regulatees to a more
cooperative and compliant attitude in the future where regulatees seek to promote their
own compliance with the regulator and with their own rules.698
695 Ibid.
696 John Braithwaite, ‘Essence of Responsive Regulation’ (2011) 44 U.B.C. Law Review 475, 483.
Braithwaite developed an enforcement pyramid that includes a hierarchy of sanctions with more co-
operative strategies at the base of the pyramid in order to coax compliance from duty holders acting
out of a sense of duty and where there is high trust.
697 Ayers and Braithwaite, above n 691, where there is ‘dis-order in the multiple self.’ That is,
business actors are bundles of contradictory commitments to values of economic rationality, law
abidingness, and business responsibility. Business executives have profit-maximizing selves and law-
abiding selves; at different moments, in different contexts, the different selves prevail.
698 Vibeke Lehmann Nielsen and Christine Parker, ‘Testing responsive regulation in regulatory
enforcement’ (2009) 3(4) Regulation & Governance 376, 379.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 221
Figure 6.2. Braithwaite’s Pyramid: Australian Office of Transport Safety Responsive
Regulatory Philosophy (‘Essence of Responsive Regulation’ 2011, 483).
Compliance responses aim to
promote full voluntary
compliance
Responsive Regulation
Attitude to compliance Possible compliance responses
Seriously disengaged
Able but not willing
Willing but not always able
Willing and able
Fully compliant
Prosecution
Cancel TSP
Injunction
Enforcement order
Compliance control direction
Vary/revise TSP
Enforceable voluntary under takings
Infringement notice
Counselling
Educate
Maintain awareness
222 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
6.4.2 Enforced self-regulation for social media rules
Enforced self-regulation is an example of how regulatory delegation and
monitoring responds to the risks of leaving firms to regulate themselves. See Figure
6.3. The Pyramid of Regulatory Strategies shows an enforcement period pitched at an
entire industry.699 With enforced self-regulation occupying the centre of the pyramid,
the firm contracts with the regulator – in this case the FWO – where the firm will then
draft and adhere to a set of social media rules that meet with the regulator’s minimum
standards.700 The firm makes tailored rules that suit that firm’s circumstances. The
regulator scrutinises the firm’s rules to see whether they meet or exceed minimum
legal standards – that is, policy directives that are likely lawful and reasonable – and
approves or requests revisions of these rules. Ideally, public interest groups that are
suitable and accountable actors701 – including actors with an enforcement role, such as
unions – are empowered to take a seat at the negotiation table between firms and
regulators and comment on the proposed rules. The primary function of the FWO is to
ensure the independence of the compliance group.702 Once the FWO approves the
rules, the firm monitors its own compliance through the independent inspection group
comprised of public interest group members. Where there is non-compliance, the firm
must ensure their non-compliance is rectified. The FWO regulator enforces self-
regulation and instigates action where it detects violations of privately
written/publicly-ratified rules, such as the enforcement of organisational social media
policies. Where firms are willing to harness a form of self or co-regulation in relation
699 Ayers and Braithwaite, above n 671, 39.
700 Ibid 106.
701 Ibid 57. A model of Tripartism can create a system of checks and balances. Responsive regulation
advocates that public interest groups become a guardian whereby they can directly punish the firm and
the regulator for not enforcing standards. Tripartism is a regulatory policy that fosters public interest
participation in ways that public interest groups are granted access to all information available to the
regulator and vesting the public interest group with the same standing to prosecute as the regulator.
See Peter Grabosky, ‘Beyond Responsive Regulation: The expanding role of non-state actors in the
regulatory process’ (2013) 7(1) Regulation and Governance, 114, 118 where a range of private parties
to whom regulatory roles can be assigned, including the possibilities of ‘wiki regulation’ where social
media has the potential to enhance the regulatory capacity of ordinary citizens. For example, capturing
regulatory breaches on smart phones and communicating them to others.
702 Ibid 106.
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 223
to CSR and social media policies, there will not be any civil or criminal sanctions
available.
Figure 6.3. The Pyramid of Regulatory Strategies
The adoption of a responsive regulation model means that, for those employers
that are inattentive in implementing their own social media policy, there will be
varying degrees of involvement from government regulators, regulatees, and public
interest actors that take place on a continuum between state regulation and self-
regulation.703 This regulatory perspective can complement CSR as a way to align
corporate behaviour with wider social and environmental goals;704 in this thesis, the
goal to preserve personal autonomy interests. A functional relationship can exist
between a framework of legal controls and voluntary action by companies that can
stimulate organisational change705 in a way that preserves personal autonomy and
legitimate business interests. The proposed approach relies on the firm’s willingness
703 Florian Saurwein, ‘Regulatory Choice for Alternative Modes of Regulation: How Context Matters’
(2011) 33(3) Law & Policy 334, 336.
704 Osuji, above n 67, 269.
705 Ibid.
COMMAND
REGULATION WITH
DISCRETIONARY/NON
DISCRETIONARY
PUNISHMENT
ENFORCED SELF-REGULATION
SELF-REGULATION
224 Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility
to adopt a self or co-regulatory approach to social media rules which narrowly triggers
the possible compliance responses shown at the bottom of the pyramid. As we move
up the pyramid, firms that disengage from self or co-regulation or unwilling to comply,
risk more serious penalties and sanctions.
6.5 Conclusion
A rights-based policy framework can encapsulate employers legal and moral
obligations that address employee speech ambiguities that exist in social media
policies. This chapter addressed the second research question: How should personal
use of social media be regulated in an effort to achieve greater autonomy in online
speech? Employers can do more to protect personal autonomy in speech on social
media. I proposed the adoption of CSR communicative tenets in drafting social media
policies may go some way to protect an employee’s personal speech interests in online
spaces. I introduced a normative policy framework based on five communicative tenets
of CSR for business: Free Speech, Collective Information Sharing, Respecting
Difference, Engagement with Stakeholders, and Transparency. While international
rights and responsibilities underpin these tenets, some Australian legal principles
provide employers with the minimum legal compliance in protecting certain categories
of employee speech. The remaining communicative tenets are wider than minimum
legal requirements that challenge employers to do more to protect employee speech
interests. I proposed that a new policy framework informed by CSR tenets,
incorporates a mix of employer legal and moral obligations that can mediate
employee’s speech together with prescribed speech on social media, as opposed to
little or no regulation where both methods can harm personal autonomy.
Communicative tenets of CSR demonstrate how employers can redefine the policy-
making process that reflects the social media space to maintain personal autonomy in
speech. One of the defining highlights of this framework is that employers should be
supporting employees’ autonomy interests in speech and only limit speech when there
is a clear harm to an employer’s interests. Where there is clear harm, employers can
instigate disciplinary action against the offending employee. Employers can do more
to guide employee behaviour in what kinds of comments or interactions might harm
the business. While a CSR informed policy relies on employers voluntarily embracing
and developing good practices on their own, advantages can include a policy that can
Chapter 6 A Policy framework based on the communicative tenets of Corporate Social Responsibility 225
guide employers in their management of risk and help clarify employee/employer
online expectations. I conclude that the law can promote deliberation and dialogue
between firms, regulators and independent compliance members in setting social
media rules. As part of an organisation’s social media governance, enforced self-
regulation is a practical approach that sustains the proposed policy framework and
aligns corporate behaviour with wider social goals of protecting personal autonomy in
speech.
Chapter 7 Conclusions 227
Chapter 7 Conclusions
7.1 Overview of thesis research
This thesis proposed that employers and the law can do more to protect personal
autonomy interests on social media. The aim of this thesis was to enhance certainty for
employees and employers around the legal and personal autonomy issues of social
media, reconcile the personal interests and business risks that arise out of an
employee’s use of social media, and suggest a way for employers to increase certainty
when regulating personal use. By adopting a normative social media policy
framework, employers can support personal autonomy in speech and preserve their
business interests. Current legal doctrine and contractual and policy arrangements do
not adequately preserve personal autonomy interests of identity preference,
participation, and speech on social media.
Chapter 2 posited that employees have less control over how they manage their
online audiences and perform their identities than they do in the physical space. This
is because, in online spaces, a user’s ability to separate their audiences is impaired due
to the unique architectural affordances of networked platforms and the role context
collapse plays in collapsing various audiences into one imagined audience. Another
important feature of networked publics is that they remove privacy barriers – such as
walls – that users traditionally relied upon in physical spaces to control audiences.
Users may find managing their identities more difficult in online contexts due to a lack
of platform privacy settings, the architecture and identity rules of individual platforms,
the activity of other users that can connect a real identity and pseudonymous account,
and users’ own self-branding strategies that can lead to role blurring. Role blurring
may result in employer disciplinary action, whereby one’s performance in a social
setting clashes with expected behavioural norms where those interactions bear some
relationship with that individual’s work. This is partly because platform affordances
forge a greater connection between a user’s interactions and their work.
Despite the difficulties of maintaining online identities in collapsed contexts,
users can make strategic choices in how they manage their professional and personal
identities through recreating boundaries around online audiences. I outlined how
online boundary management is a guide for a subset of users to manage their personal
228 Chapter 7 Conclusions
and professional audiences in networked publics. Online boundary management
practices are different from traditional boundary management in physical spaces as it
reflects social media’s public or semi-public nature of interactions. This theory showed
that users have a menu of choices and behaviours in how they strategically navigate
their online personal and professional audiences. User autonomy was an essential
element of how one constructed their own boundary management strategies.
Chapter 3 highlighted the ways employees used social media in their work or
personal time can be a windfall or source of significant risk for corporations. I
answered the latter part of Research Question One: How do current legal doctrine and
employment contractual agreements balance employee and employer social media
interests? In researching employer interests on social media, I answered the first sub-
question: What are the uses of social media for business and how can firms mitigate
for social media risk? I discussed that employers’ amplifying the corporate brand by
appropriating an employee’s personal social media account can be advantageous for
corporate branding but can also be detrimental to personal autonomy interests.
Conversely, a distinct lack of employer control over personal interactions can increase
the potential for risk and legal liability that can affect the firm’s obligations in
protecting other stakeholder interests including its customers, investors and
employees. The challenge for employers is to strike a balance between employer
control in safeguarding these interests and maintaining employee trust. This means
employers need to reassess their own legal duties and liability issues with respect to
employee sanctions or rules that affect personal social media use.
Employers owe obligations to their employees and it is difficult to protect them
from other employees conduct, particularly in view of the legal complexity
surrounding online bullying. The anti-bullying provisions potentially expose firms to
greater Fair Work scrutiny that can dictate certain orders for the employer to prevent
further bullying and expand the firm’s liability in public/private spaces. The chapter
then outlined some social media risks and their legal implications that can adversely
affect the firm’s interests and business reputation.
To counter these social media risks, a firm can implement a social media policy
to control their employees’ personal behaviour. I raised a major concern that
organisations have little industry guidance or best practice measures in how to
maintain the personal autonomy interests of their employees in these spaces. I
Chapter 7 Conclusions 229
maintained that protecting personal autonomy interests was important because, for
some individuals, personal autonomy is an entitlement or ideal to self-rule that is
valuable for choice and a sense of self and identity. I asserted that personal autonomy
is valued as a goal because of the way in which employers and the law can preserve
one’s interests in maintaining identity and speech interests online. I proposed one way
for organisations to maintain employee trust is through best practice that includes
clarification of acceptable personal behaviour in online spaces.
Chapter 4 provided some examples of social media policies that were used to
illustrate potential threats to personal autonomy interests. This chapter answered the
sub-question of Research Question One: What kind of employee interests need
protecting on social media? Some policy directives were illustrative of the blurring of
employees’ personal and work boundaries that increases context collapse. Some of the
example policy directives potentially usurp user identity preferences in ways that limit
a user’s full participation online. The most divisive policy restrictions that harm
personal autonomy interests were directives that constrained personal identity through
the prohibition of pseudonymous or anonymous accounts and the mandating of
employees to affiliate with their work.
Restricting user identity by forbidding employees to post anonymously or
pseudonymously is extremely harmful for a user’s identity because there are reasons
why an employee chooses to use a pseudonym or ‘handle’. For example, a pseudonym
allows an individual to contribute to public debate and reduce the risk of verbal attacks
from others who disagree with their opinion. Policies that mandate employees affiliate
with their work via a work disclaimer on their personal account established a visible
connection with the user’s work. This restriction constructed the user as an ‘employee’
and ignored other roles, including that of a citizen participating in civil discourse.
The research revealed a serious risk to personal autonomy if employers did not
refrain from sabotaging their employees’ boundary management capabilities.
Directives that mandated an individual’s real identity and their connection with work,
can harm personal autonomy by limiting an employee’s ability to manage their own
boundaries. Examining these example directives through the lens of online boundary
management theory demonstrates how an employee’s ability is impaired in how they
may manage their personal and professional boundaries. These incursions of employer
control over individual boundary management practices, requires employees to
230 Chapter 7 Conclusions
undertake considerable effort to avoid mismatches between their personal views and
work norms. These practices contradict the theory that employers should be helping,
not hindering, employees to manage their personal and professional boundaries.
Policy restrictions on user identity can have powerful consequences that inhibit
an employee’s social participation, entrepreneurial aspirations, or infringe privacy
preferences on networked platforms. Example policy directives that limit an
employee’s identity preference and participation also undermine a user’s self-
promotion in online spaces that harms the employee’s career prospects, given a
platform’s invisible audience. In terms of employees’ overall use of the space,
employees constrained by their real identity and their work, are restricted in their
capacity to interact as private citizens online.
I discussed the prohibitions on employee speech interests that interfere with what
users can legitimately comment about in relation to work. Directives that disapprove
of employees talking about work or using inflammatory language in relation to work
on social media may be unenforceable against an employee. This is because general
protections exist at law for certain kinds of employee speech. I asserted that if
employees or their representatives did not challenge these types of policy restrictions,
there is the risk that these policies will become the accepted norm and diminish an
employee’s lawful participation in work-related matters.
Chapter 5 explored the legal ways in which employees can preserve their
personal autonomy in speech on social media. I analysed functions of regulatory
bodies, contractual principles, the common law as it relates to employee obligations,
social media rules, and statutory instruments that regulate employee social media use.
I answered Research Question One: How does current legal doctrine and employment
contractual agreements balance the competing interests of employee and employer? I
examined employees’ legal rights and freedoms that exist in the employment
relationship to answer the second sub-question: What employee protections and
obligations exist at law and to what extent does the law require employees to comply
with social media rules?
Before answering this sub-question, I explored the functions of the Fair Work
Commission and the Fair Work Ombudsman (FWO) in relation to their role resolving
social media disputes. I concluded that the Commission, particularly in its unfair
dismissal jurisdiction, is not equipped to deal with some personal autonomy interests
Chapter 7 Conclusions 231
on social media. First, uncertainty in the law exists regarding the extent to which an
employer can supervise employees’ personal lives to minimise online risks, given
employee (mis)use of social media can enhance the risk of harm for all types of
business interests. I asserted that an employee’s entitlement to a private life706 in online
spaces is more akin to protecting personal autonomy interests of speech and
participation. In practice, employers mitigating for broad exceptional circumstances
due to the unique affordances of social media legitimises their supervision over
personal conduct. In reality, employers or fellow employees are always supervising,
or at least monitoring, each other’s personal conduct on social media.
Second, the Commission has a limited role in resolving social media disputes.
The Commission does not adjudicate individual freedom of speech concerns, but is
largely concerned with substantive valid reasons for dismissal and procedural fairness
processes. There are no guarantees of freedom of expression in Australia. Advancing
free speech is limited to interpretations of the Constitution that can provide guidance
on certain speech rights. The Commission can adjudicate protected speech issues such
as employee trade union activity or political opinion. While some employees want
employers to respect their freedoms in online contexts, tensions will persist until the
law addresses two main issues. First, to alleviate confusion, the law needs to provide
certainty about when employers can regulate personal conversations on social media.
Second, the blurring of work and private boundaries in online contexts needs legal
intervention to assist employees manage their own boundaries and encourage them to
take more care in what they post on public platforms.
The other Fair Work entity, the Fair Work Ombudsman (FWO) appears to have
little input in the resolution of employee social media disputes. The Ombudsman can
proactively enforce standards but has minimal input in helping employers shape
policies that preserve personal autonomy interests on social media. I proposed that
both entities are within their statutory functions to be more proactive in assisting
employers resolve social media tensions. Fair Work entities can facilitate
employee/employer negotiations around the management of social media personal and
professional boundaries and provide advice or training in relation to these tensions.
These proactive strategies can contribute and form part of the entities’ desire to
706 Rose v Telstra [1998] AIRC 1592.
232 Chapter 7 Conclusions
promote cooperative and productive workplace relations and the prevention of
disputes.
I then answered the research sub-question by examining the law surrounding the
enforceability of social media rules and the ways in which employees can challenge
their dismissal for social media (mis)use. I discovered that employees could challenge
social media rules through contractual principles that enable them to bring an action
against their employers for breach of contract. Where an employer dismisses an
employee because of an alleged breach of a social media policy, employees can make
a statutory claim through a Fair Work application that protects employee statutory
freedoms, including political opinion.
Employees can challenge the legal enforceability of social media rules that exist
as promissory terms in contract or as guidelines or policies. The ways in which
employers enforced these rules triggered important contractual principles that required
further analysis to ascertain a breach. For employers that enforce social media rules as
promissory terms in contract, the Barker case ruled that the implied duty of mutual
trust and confidence did not apply to Australian employment contracts and was silent
as to whether good faith existed. Lower courts and tribunal decisions have generally
found employers owe a duty of good faith to their employees. The notion that good
faith exists in these lower courts suggests that employers draft social media rules in a
way that will not adversely affect employees’ personal interests in online spaces.
The other way in which employers can enforce social media rules is through
guidelines or policies that must be lawful and reasonable at law. Employees have
implied obligations to obey their employer’s lawful and reasonable directions707 that
also co-exist with employees and employers’ duties to cooperate708 with each other.
When employers draft social media policies they cannot enforce compliance if these
rules fall outside what is lawful and reasonable. Policy directives are lawful if they fall
707 R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and
Sullivan (1938) 60 CLR 601.
708 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, [25]. The parties to any contract
each owe a duty of cooperation that operates in a way that is consistent with the express terms of the
contract. See Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, [168].
Chapter 7 Conclusions 233
within the scope of the employment contract, whilst reasonableness can refer to
appropriate limits of managerial authority or proportionality when an employer gives
an employee a direction that relates to private conduct. The broad considerations of
the duty to cooperate, including employees avoiding harm to business interests,709 can
shed light on what is reasonable, but an employer has no right beyond these limits to
infringe an employee’s entitlement to a private life, or personal autonomy interests on
social media. I proposed that ‘reasonableness’ means that policy directives should not
limit interactions that are unlikely to cause the business harm and interfere with an
employee’s personal autonomy. Employers breach contract if they enforce rules that
restrict speech that does not have a connection with work, is protected political speech,
or the speech does not harm the employment relationship. If an employer disciplines
or terminates the employee for not complying with the policy directive, the employee
may argue the directive is unenforceable, which gives rise to contractual rights to seek
a remedy for breach of contract.710
The examples of policy directives in Chapter 4 , raised questions of their legal
enforceability against employees. Some directives restricted personal speech that did
not have a connection with an employee’s work, or the speech was unlikely to harm
the employment relationship. Of concern, were directives that prohibited employee
anonymity or pseudonymity or mandated a work connection on personal accounts.
These tested the limits of lawfulness and reasonableness. An employee can be
disadvantaged at law because if they affiliate with their work on their personal profile
or post, the visible affiliation may satisfy a work connection that supports an
employer’s valid reason for dismissal in unfair dismissal proceedings. Alongside these
employee concerns, directives that form a work connection have serious incursions for
employers. This is because employees’ using a work disclaimer on their personal
account automatically forms a work connection. Employee interactions or comments
that take place within collapsed contexts can attribute to the firm and potentially
increase the firm’s social media risk.
709 Rose v Telstra [1998] AIRC 1592.
710 Employer breach of contract may also apply where the clause is an express term of a contract that
might breach the employer’s implied duty of good faith (if it exists) to not harm employee interests.
See Morton v Transport Appeal Board [No 1] (2007) 168 IR 403, 435 [201].
234 Chapter 7 Conclusions
The second way in which employees can challenge their dismissal is through
making application under certain statutory provisions. Where an employee’s dismissal
occurs because of their social media (mis)use that breaches the firm’s policy, the
employee may seek a remedy, for example reinstatement, through a Fair Work Act
2009 (Cth) application. The Fair Work Commission in its unfair dismissal and general
protections jurisdiction can adjudicate employee dismissals that involve social media
disputes.
In unfair dismissal proceedings, a degree of uncertainty exists in the way in
which the Commission considers individual factors surrounding an employee’s
dismissal for a breach of policy. The Commission will determine if the dismissal was
harsh, unjust or unreasonable.711 The Commission will satisfy itself as to whether the
employer had a valid reason for terminating the employment relationship.712 The
research showed mitigating factors that did not constitute a valid reason for an
employee’s dismissal included: a lack of evidence that an employee’s post caused the
firm damage;713 an employee’s unblemished employment record;714 and the impacts
of technology on work.715
The second way in which employees can seek a statutory remedy for an alleged
breach of policy is through general protections in an adverse action or unlawful
termination claim. The extent to which the statutory provisions protect speech that is
not general speech on social media, such as trade union or political speech, remains an
unresolved area at law. Recent high-profile cases involving employee dismissals
because of their political opinions on social media have settled privately outside of the
Commission. The Commission missed an important opportunity to clarify the scope
of the political opinion protection in social media spaces. The law remains unsettled
on the extent to which general protections safeguard (if at all) employees’ political
opinions on social media.
711 Fair Work Act 2009 (Cth) s 385.
712 Ibid s 387(a), the remaining sub sections relate to procedural fairness matters and Small business
Fair Dismissal Code.
713 Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358.
714 Atfield v Jupiters Ltd (2003) 124 IR 217.
715 Faulkner v BHP Coal Pty Ltd [2014] FWC 9330.
Chapter 7 Conclusions 235
I concluded that current legal doctrine and some employer practices do not
adequately preserve personal autonomy in speech on social media and this is due to a
lack of legal certainty. The uncertainty in the law does little to assist employees or
their representatives, in protecting speech interests on social media. How far
employees can safeguard their statutory speech protections without damaging
employer interests is also unclear. Social media policies that include employee
protections, such as political opinion and union activity, could limit employer control
over an employee’s speech. This places limits on the extent to which employers can
lawfully protect the firm’s reputation. I conclude by suggesting employees can
contribute to policy development in a more meaningful way to avoid constraints on an
employee’s personal autonomy in speech. While we wait for legal resolutions of these
tensions, I proposed a new co-creative policy framework to improve clarity and
certainty of employee speech on social media.
Chapter 6 concluded that employers can protect personal autonomy in speech
by adopting a rights-based policy framework that encapsulates employers legal and
moral rights that can address ambiguities that exist in some policies. I answered
Research Question Two: How should personal use of social media be regulated in an
effort to achieve greater autonomy in online speech? In addressing this research
question, I explained how communicative tenets of Corporate Social Responsibility
(CSR) tailored for business communication, can preserve certain kinds of employee
speech and assist employers balance some of their legal obligations in managing risk
and moral obligations to protect personal autonomy in speech. This approach may help
guide employers in developing appropriate and fair policies to reduce policy overreach
into employee’s personal lives. An employer’s moral obligation in safeguarding
personal autonomy interests stem from principles that underpin CSR communicative
tenets that relate to individual rights. I demonstrated this by overviewing the way in
which the communicative tenets of: Free Speech, Collective Information Sharing,
Respecting Difference, are underpinned by international legal instruments that can
extend to Australian legislation in the protection of various categories of employee
speech. I proposed that the framework is wider than minimum legal compliance and
fills a gap that challenges firms to do more to encourage employee speech through
Engagement with Stakeholders, and Transparency. The framework can mediate
between proscribed and prescribed employee speech, as opposed to little or no
236 Chapter 7 Conclusions
regulation where these methods can be harmful for personal autonomy. I explained
that social media policies do not need to be exhaustive as this framework allows for
minimum legal compliance yet provides flexibility to adapt to technological change.
This is because a social media policy with less prescription provides greater flexibility
to suit individual business models. The framework motivates employers to support
employees’ autonomy interests in speech, but can limit speech where there is a clear
harm to employer’s interests. Where there is clear harm, employers can instigate
disciplinary action against the offending employee. Employers can do more to guide
employee behaviour in what kinds of comments or interactions might harm the
business. I speculated that organisations that incorporated a principled policy
framework into their governance structure could establish a culture of transparency
and uphold their obligations to their employees as stakeholders. I acknowledged the
limits to a CSR informed policy framework— the main limit being an aspirational or
voluntary framework. While a CSR informed policy relies on employers voluntarily
embracing and developing good practices on their own, advantages can include a
policy that can guide employers in their management of risk and help clarify
employee/employer online expectations. I proposed that the law can promote
monitoring and dialogue between firms, employees and external parties with the Fair
Work Ombudsman as regulator. A tripartite process including an independent
compliance team can assist in the setting of social media rules. As part of an
organisation’s social media governance, enforced self-regulation was a practical
approach that can sustain the proposed policy framework and align corporate
behaviour with wider social goals of protecting personal autonomy in speech.
This final chapter outlines my recommendations and summarises the main
argument of this thesis and the normative policy framework that I propose to inform
the resolution of employee/employee tensions in the social media space. I then
examine how the proposed framework answers the normative question of how should
employee use of social media be regulated and explain the limitations of this
framework. Last, I conclude where further research will be required to address
challenges in the future of work.
7.2 Recommendations
Chapter 7 Conclusions 237
Recommendation One:
That employers remove restrictions prohibiting employees from using
pseudonymous or anonymous social media accounts. These directives are divisive
for personal autonomy interests because they have the potential to interfere with
an employee’s identity preference and their ability to participate fully with their
online audiences.
Alternatively, courts could render these restrictions unenforceable.
Restrictive directives that forbid pseudonymity and anonymity on social media
prevent users from negotiating their online identities and can inhibit their full
participation with online audiences. Restricting user identity is harmful for personal
autonomy because there are sound reasons why individuals choose to use a pseudonym
or ‘handle’. For example, a pseudonym allows an individual to contribute to public
debate and reduce the risk of verbal attacks from others who disagree with their
opinion. Others can engage without the complexities of one’s real life interfering with
their message and explore the fun in being someone else or indeed many other people.
More importantly, a pseudonym or anonymous handle helps distance one’s personal
views from those of their employer or professional role. These directives might also
be unlawful and unreasonable if they are outside the scope of the employment
relationship.
Recommendation Two:
That employers remove the requirement for work affiliations via work
disclaimers on personal accounts. These directives are divisive for personal
autonomy interests because they have the potential to interfere with an
individual’s identity preference and their ability to manage their personal and
professional boundaries. These directives can also increase legal liability for firms
and employees.
Alternatively, courts could render these restrictions unenforceable.
Restrictive directives that require employees to affiliate with their work through
their use of work disclaimers on personal profiles can place all the user’s interactions
within the context of work. Work affiliations on personal accounts is concerning for
an individual’s identity preference because employees are publicly constrained to a
work persona. Employer directives that appropriate employees’ work identities on
238 Chapter 7 Conclusions
their personal social media accounts in this way is unachievable in practice because
one cannot logically exist if they are to present as entirely transparent and business-
oriented.716 This is because work and life domains interact and are ‘dynamic in
nature.’717 Tension can arise when an employee expresses their personal opinion that
can conflict with their work identity.
Employers should be helping, not hindering, employees to manage their personal
and professional boundaries. Policies that restrict a user’s identity through a work
affiliation on their personal profile undermines the way in which users may manage
their personal and professional boundaries. By examining restrictive directives
through the lens of online boundary management theory, an employee’s ability is
impaired in how they choose to manage personal and professional contacts. This
theory explained how employer practices in implementing restrictive directives
effectively controlled user identity and sabotaged an employee’s ability in managing
their online audiences.
The removal of work disclaimers on personal accounts enables employers to
create distance from their employees’ personal social media use. Eliminating work
affiliation directives may lessen the risk of adverse action and unlawful termination
claims. For example, the SBS reporter’s personal Twitter profile listed his work as an
SBS sports reporter. This established a work connection and situated all his
interactions within the commercial marketplace of work. If an employer’s direction
compelled the reporter to make this work affiliation, employers could be enhancing
the blurred boundaries of personal and work, and increasing the firm’s exposure to
risk. In that case, if the reporter’s work affiliation via a disclaimer was absent from his
personal Twitter profile, this could reduce the chance of others making the direct
connection to his employer. Absent this visible work connection, the Twitter audience
may have viewed the tweets as an expression of his personal opinion, rather than attach
those comments to a readily identifiable and visible professional identity. This
approach may be limited to situations where the employee does not have a high public
profile or has a common user name. Employers discouraging employees from making
716 Marwick, above n 91, 199.
717 Rhemus Ilies et al., above n 92.
Chapter 7 Conclusions 239
a work affiliation and removing restrictions of identity on personal profiles (not
professional profiles such as LinkedIn) may reduce these legal impacts.
This recommendation could prevent an employee from bringing an adverse
action claim in circumstances where their conduct indirectly relates to their work.
Employees who use pseudonymous or anonymous accounts and do not affiliate with
their work on personal profiles may struggle to bring an adverse action or unlawful
termination claim against their employer. This is because the more difficult it is for
tribunals to establish the employee’s conduct had a direct work connection, the less
likely it will be that an employee’s personal conduct will be covered by employee
protections or prohibited reasons that relate to unlawful termination. According to a
report concerning adverse action claims, there were calls for defining the uncertain
‘complaint’ trigger for protection of a workplace right,718 and the modification and
meaning of a workplace right.719 Specifically, the draft recommendation 6.2 called for
an amendment to Section 341 of the Act:
Modified provisions should more clearly define how the exercise of a workplace right
applies in instances where the complaint or inquiry is indirectly related to the
person’s employment; (emphasis added) The FW Act should also require that
complaints are made in good faith; and that the Fair Work Commission must decide
this via a preliminary interview with the complainant before the action can proceed
and prior to the convening of any conference involving both parties. 720
This recommendation could have had implications in circumstances where an
employee voices their political opinion on social media that does not directly relate to
that person’s employment.
Recommendation Three:
That the law adapts to improve certainty for two main reasons.
718 Productivity Commission, above n 612, 30. The final report did not implement this
recommendation.
719 Fair Work Act 2009 (Cth) s 341(1). A person has a workplace right if the person (a) is entitled to
the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order
made by an industrial body.
720 Productivity Commission, above n 612, 49.
240 Chapter 7 Conclusions
a. Courts or tribunals can enhance certainty in the extent to which protections
exist for certain forms of speech. There is legal uncertainty in the scope of
protection in terms of an employee’s political opinion and trade union activity in
networked contexts.
b. Courts or tribunals can enhance certainty by articulating the ways in which
employees’ personal interactions on social media can damage the firm’s interests.
Of concern are the kinds of connections that can link a user’s personal social
media profile to their work. This is critical for users in managing their personal
and professional boundaries and avoiding interactions that may cause the
business harm.
The law is unclear in how far general protections and prohibited reasons can
extend to personal conduct on social media, given its unique affordances that are
different from employee conduct in physical spaces. While the Fair Work Commission
initially considered that employees’ communications in online contexts were
broadcasting to the world at large that enabled employers to extend control over
personal conduct, recent decisions signal a shift in safeguarding employee privacy and
work-related speech.721 Employees require clarity in terms of their protection of
political opinions on social media, and in what circumstances can employers discipline
them for voicing those opinions. Central to this issue is reconciling an employee’s
political opinion against the damaging impacts for business. While the Commission
will likely decide these issues in the future, personal autonomy interests of
participation and speech in networked contexts are at risk.
While some employees want employers to respect their freedoms in online
contexts, tensions will persist until the law addresses the blurring of work and personal
boundaries within these spaces. Aside from an employee’s general speech on social
media that can harm the firm’s interests, legal clarification is required on what
721 Thornthwaite, above n 419, 13. The author draws upon this shift in four main cases; Fallens v
Serco Australia Pty Ltd T/A Serco Acacia Prison [2015] FWC 8394; Starr v Department of Human
Services [2016] FWC 1460; Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota [2014] FWC
644; Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168.
Chapter 7 Conclusions 241
constitutes a ‘connection with work’ on social media and what kinds of links to work722
might cause the firm to take disciplinary action against the employee. Platform
affordances make it easier for employers to monitor their employees’ interactions,
which can result in disciplinary actions in ways that personal interaction in the physical
space did not. This is partly because platform affordances can forge a greater
connection between a user’s interactions and their work, and users have less control
over their online communications. Clarification of these issues, perhaps by way of
some examples, may assist employees manage their own boundaries and encourage
them to take more care in what they post on online platforms. Following the resolution
of these issues, courts and regulatory bodies will need to be more critical of social
media policies to ensure policy directives do not go beyond what is lawful and
reasonable.
Recommendation Four:
That both Fair Work entities are within their statutory functions to do more to
assist employers resolve social media tensions through facilitating negotiations,
providing advice or training, and preventing further disputes. The Fair Work
Ombudsman, as the national enforcement of standards regulator, can monitor
and delegate power to entities to ensure a firm’s compliance with a social media
policy that is informed by CSR communicative tenets. Employers can regulate
personal use of social media but the law alone cannot remedy all the problems
that arise in this contested space.
My concern about social media governance is the lack of employer legitimacy
in the exercise of control over personal speech, particularly with respect to how this
control affects an individual’s overall participation in networked publics. The lack of
employer legitimacy is due to the absence of social media policy guidelines that are
employee focussed. With little industry or regulatory guidance, the research shows that
an ad hoc approach to regulating personal interactions on social media can be
722 See where work affiliations via disclaimers on personal profiles can link an employee’s general
speech to their work in Chapters Four and Five. See also Singh v Aerocare Flight Support Pty Ltd
[2016] FWC 6186, [284] where the case left open whether employees as Facebook ‘friends’ on an
employee’s personal profile that did not disclose their employment, could form a direct connection
with work.
242 Chapter 7 Conclusions
damaging for personal autonomy interests. Whilst restrictive directives may set out to
protect business interests from risks and reputational harm, these same directives can
discount the benefits of social media by constraining user identity, impair an
employee’s ability to manage their own personal and professional boundaries, and
restrict what content they choose to share with their audiences.
At law, employers can regulate personal conduct through social media policies
to the extent that conduct relates to employment agreements, common law obligations,
and circumstances that give rise to business harm. The selection of example policy
directives in Chapter 4 shows the way in which employer practices inhibit employee
use of social media. These examples signal that employers are setting their own norms
of online behaviour that dictate how employees should communicate in this space.
Employers who seek to control employees’ personal interactions on social media
extend control beyond that which is supported in contract and at common law and
raises serious legal questions as to the enforceability of these policies. The research
has shown that restrictive directives are unlikely to be enforceable if they fail to
comply with existing legal authority that dictates policies are to be lawful and
reasonable. Restrictive policies that constrain user autonomy in ways that inhibit one’s
identity and full participation and speech on social media, have so far escaped the
scrutiny of tribunals and courts as to their legitimacy.
This thesis has shown that employers require guidance in how to prevent and
manage questionable employee behaviour on social media. Stakeholder
communication is the fundamental mechanism that supports personal autonomy
interests and social media governance. CSR communicative tenets demonstrated how
certain speech rights exist for business stakeholders, and from these underlying
principles, I highlighted employee tensions and reconciled these against the legitimacy
of employer control over personal speech. The five communicative tenets of CSR –
Freedom of Speech, Collective Information Sharing, Respecting Differences,
Engagement with Stakeholders, and Transparency723 – is best suited to this task
because some of these tenets are underpinned by international rights instruments that
extend to Australian legislation. The Fair Work Ombudsman (FWO) could possibly
oversee the implementation of this policy framework in two ways. First, the FWO
723 Stohl et al.above n 60.
Chapter 7 Conclusions 243
could promote this framework by providing education to assist employers set standards
of social media behaviour that aligns with the communicative tenets of CSR. Second,
where an employer resists implementing or complying with a policy, the FWO could
play an enforcement role in monitoring and delegating power to others to ensure the
firm’s compliance with the aim of achieving more balanced policies.
7.2.1 Advantages of a CSR informed policy for employees
The five communicative tenets of a CSR informed policy that may protect
employee interests are as follows:
1. Freedom of Speech
Tenet: Businesses should support and respect the protection of
internationally proclaimed human rights including freedoms of speech,
expression and association regardless of the region of the world in which
they operate and the position of the stakeholder
Employee interests: Free speech; some States724 preserve expression and
association by virtue of the Fair Work Act 2009 (Cth) s 351 (adverse action
based on political opinion) and ss 346, 347 (trade union activity).
2. Collective Information Sharing
Tenet: The responsibility of organisations is to explicitly permit employees
to engage in concerted activities (e.g. sharing information about work
conditions) for the purpose of mutual aid or protection
Employee interests: Trade union activity; for example, discussing work
conditions on social media by virtue of the Fair Work Act 2009 (Cth) ss 346,
347 (though these are legal grey areas).
3. Respecting Differences
724 All States with the exclusion of New South Wales and South Australia have provisions whereby
political opinion is a protected attribute under that State’s Anti-Discrimination legislation.
244 Chapter 7 Conclusions
Tenet: Respect different values, opinions, beliefs and attitudes of
stakeholders that engage with an organisation. Discrimination in any form
is unwarranted
Employee interests: Applies to work-related and general speech;
discrimination protections in the Fair Work Act 2009 (Cth) s 351; various
Commonwealth and State Anti-Discrimination Acts; Anti-bullying
provisions in s 789FC Fair Work Act 2009 (Cth). See Table 6.1.
4. Engagement with Stakeholders
Tenet: Through dialogic engagement, stakeholders’ views and perspectives
need to be taken into account in the negotiation of the responsibilities and
expectations of organisations
5. Transparency
Tenet: Transparent communication not only inhibits deception and
corruption but enables the fair negotiation of corporations’ and employees’
responsibilities
The CSR tenets demonstrate how communication is relational and dialogic and
can empower employers to protect personal autonomy in speech. This approach can
assist employers identify and preclude the type of restrictive constraints that some
policies impose on personal social media interactions. A policy informed by CSR
tenets could regulate employee behaviour as opposed to a lengthy document or set of
guidelines that includes every conceivable social media risk. While there is no ‘one-
size-fits-all’ approach to social media governance, the framework that incorporates
CSR tenets demonstrates how organisations can implement a policy that addresses the
minimum legal and moral concerns of all its stakeholders. In the absence of any clear
guidance or rights based policy framework, a policy that is informed by CSR
communicative tenets need not be exhaustive. Essentially, the framework requires
some minimum legal compliance yet is flexible to adapt to technological changes. A
social media policy with less prescription allows for greater flexibility to suit
individual business models. Flexible frameworks provide room for creative problem-
solving but care needs to be taken as broad or ambiguous provisions can attract a level
of uncertainty as to their interpretation. Social media policies require sufficient
prescription to fulfil the employer’s legal compliance in terms of speech protections,
Chapter 7 Conclusions 245
combined with a moral appreciation of protecting personal autonomy. Employers need
flexibility to confront complex social media issues without incurring liability. I
propose that employers can contribute to best practice by adopting a principled, rather
than a piecemeal approach to policy-making that avoids drafting a lengthy document
that includes every conceivable risk. The table below shows what a basic CSR-based
policy framework could look like with a view to reconciling competing stakeholder
interests.
246 Chapter 7 Conclusions
Table 6.4 in Chapter 6 showed what a CSR informed social media policy could
look like.
My proposed recommendations can advantage employees in ways that protect
personal autonomy interests. First, there are no restrictions when employees should
use work affiliations such as disclaimers on personal accounts. This does not restrict
identity performance except when authorised to represent the firm in an official
capacity. Second, social media policies could protect speech protections that include
individual political speech and work conversations. Last, the framework supports
stakeholder engagement that encourages: training and reinforcement of
employee/employer responsibilities, including examples of content that may harm the
firm’s interests; organisational assistance with managing employees’ personal and
professional boundaries; flexibility whereby policy infringements are considered on a
case-by-case basis.
7.2.2 Limitations of the proposed CSR policy framework
A patchwork or reckless approach to social media policy development is not an
ideal framework for maintaining personal autonomy interests in speech. The example
policy directives in Chapter 4 , demonstrated how some policies did not adequately
protect identity preference, participation, and speech and did not accurately reflect
tensions that permeate from employer control mechanisms. So far, it seems courts and
tribunals have overlooked employer directives in social media policies that are likely
to neglect user autonomy tensions. In articulating a normative framework grounded in
communicative tenets of CSR, I addressed employee tensions within a framework that
considers both employee and employer interests.
Employers risk assumptions in drafting these policies are likely to overlook
employee tensions that can lead to outcomes that detract from legitimacy and fairness.
By articulating employee tensions in a social media framework, employers and
regulators have the ability to conceptualise the harm that restrictive directives can
inflict upon personal autonomy in speech as well as reduce employers’ risk in
governance practices. The aim of this thesis was to evaluate employee/employer social
media interests and resolve the tensions that currently exist in this space. The efficacy
Chapter 7 Conclusions 247
of this thesis depends on two main issues: the willingness of employers to adopt the
proposed framework; and the sustainability of a policy framework that supports
personal autonomy in speech.
Given the range of social media risks discussed in Chapter 3 , employers may
be reluctant to strike a balance that is in favour of its employees. Employees ubiquitous
use of social media and employers’ legal requirements to enforce reasonable and
lawful policies may command employers, human resources, industry councils, unions,
courts and regulatory bodies to be sceptical of a makeshift approach in the drafting of
social media policies. The proposed policy framework is a principled way in which to
conceptualise the types of harm that restrictive directives can cause for personal
autonomy in speech. Disputes surrounding an employee’s social media use can be
costly for employees and employers with the potential to amplify damage to business
reputation, particularly given the spreadability, visibility and permanency affordances
of social media. To mitigate for these risks, employers or industry groups should be
encouraged to develop more rigorous internal governance mechanisms in regulating
personal behaviour. While there is no ‘one-size-fits-all’ approach in which to address
social media governance, the proposed policy framework can empower employers to
address business risk that affects all its stakeholders.
I speculated that employee protections within these spaces are consistent with
academic research that calls for an employee-focussed approach in an employee’s
rights agenda.725 The communicative tenets of Engaging with Stakeholders and
Transparency are about challenging employers to effectively engage in transparent
dialogue with employees (or their representatives), to reinforce obligations and reduce
conflict. Employers involving employees in a co-creative policy-making process
shows how employers can do more to engage employees in dialogue that provide the
firm with an understanding of the importance of protecting one’s autonomy interests
725 McDonald et al, above n 69. The authors discuss employer transparency and reciprocity in
employee surveillance and profiling. Also See Park, Susan and Patricia Sánchez Abril, ‘Digital Self-
Ownership: A Publicity-Rights Framework for Determining Employee Social Media Rights’ (2016)
53(3) American Business Law Journal 537 regarding a publicity rights approach to ownership of
digital assets.
248 Chapter 7 Conclusions
in networked spaces. The proposed policy framework however, is not without its
limitations.
There were two significant limitations on the efficacy of a policy framework
informed by communicative tenets of CSR. My concern was that employers
voluntarily committed to the framework and acknowledged the reasons why they
would be unlikely to relax their control over employees’ behaviours. I raised my fears
about the framework’s sustainability in supporting personal autonomy in speech. I
speculated that the law – through responsive regulation as a potential enforcement
strategy – might succeed if organisations succumbed to external oversight in the
interests of protecting personal autonomy interests. For instance, an external actor such
as the FWO could require employers to undertake a more co-creative approach to
policy development with their employees or independent representatives in an attempt
to address personal interests on social media. An external actor monitoring and
approving internal policy development in this way increases employer efficacy of
social media governance by reconciling employer risk, personal autonomy and policy
legitimacy. I proposed that the policy framework can provide employers with a
template for minimal legal compliance across their perceived risk, and encourage them
to develop best practices that they have negotiated with employees or public interest
groups. The goal is to curtail the extent of employer control over personal interactions
on social media and create a policy framework that supports personal autonomy whilst
also mitigating for business risk in a legally compliant way. As some of the example
policy directives have shown, restrictions that potentially limit an individual’s identity,
participation and speech on social media disproportionately shifts employer control
over personal interactions that can interfere with an employee’s personal autonomy
interests. A new policy framework may alleviate the personal autonomy consequences
of these employer practices. As more people utilise social media for work and personal
use that can often lead to blurred boundaries, a key concern is the legitimacy of the
internal governance mechanisms that lack the scrutiny of courts and regulatory bodies.
Chapter 7 Conclusions 249
7.3 Future Research
7.3.1 The future of work and technology
The future of work carries technological risk for employers when setting
guidelines for social media behaviour. There is scope for future research beyond this
thesis, as employers face challenges in protecting their business interests and
mitigating risk. As workers become more mobile and work from home, virtually or
elsewhere, there is an increased likelihood these work practices potentially facilitate
further blurring of work and personal boundaries. Peer-to-peer, the sharing economy,
and mobile apps are changing the nature of work. Work in the sharing economy can
expose firms to greater risk where workers have the potential to increase the blurring
of roles where their personal conduct can have a direct impact on the firm that causes
business harm.
New professional and personal rating apps have evolved726 that drive personal
opinions and individual ratings. Employers need policies that are flexible and
adaptable to address risk associated with advances in new technology, but contain
sufficient compliance to prevent employees making defamatory, discriminatory or
bullying comments about another employee or client. In terms of firms safeguarding
stakeholder interests, apps can provide customers, clients, welfare groups and potential
employees with information as to how well a brand or organisation conforms with its
social responsibility. These apps may have negative impacts for corporate reputation.
Users can garner information in how organisations respond to socially responsible
practices. For example, the ‘Good on You’ app727 provides a ranking system from one
to five that measures a brand or an organisation’s social responsibility towards its
labour practices in supporting worker’s rights; environmental impact in terms of codes
726 Sarah Perez, ‘Controversial People-Rating App Peeple Goes Live, Has a Plan to Profit from Users’
Negative Reviews’ TechCrunch (8 March 2016)
<http://social.techcrunch.com/2016/03/08/controversial-people-rating-app-peeple-goes-live-has-a-
plan-to-profit-from-users-negative-reviews/>. ‘Peeple’ app allows users to rate people professionally
and their personalities,
727 ‘Goodonyou’ App, Apple Store (April 2016) <http://goodonyou.org.au/app/>
‘Good on You’ app rates brands and organisations according to their social responsibility in relation
to labour, environment and animal welfare practices.
250 Chapter 7 Conclusions
of practice in reducing its carbon footprint and climate change; and its commitment to
animal welfare with regards to its products. Users are able judge how effectively a
brand is performing in terms of its responsibility rating against the three criteria. This
rating then informs the user’s spending behaviour of that service. The app’s
functionality provides the user with an opportunity to provide brand feedback based
on the responsibility criteria by clicking on a pre-formatted positive or negative
feedback message. In terms of supporting employee rights, the law may in time, clarify
the scope of these rights in respect of online speech. A less than favourable labour
rating and negative user feedback might have serious consequences for corporate
reputation as an employer of choice or derail recruiting strategies. A principled
organisational policy that provides best practice in a balanced and sustainable way
discourages negative feedback and may enhance labour responsibility ratings.
7.3.2 Pre-work and post-work policy-making
The proposed policy framework in this thesis requires further refinement to
address social media governance that relates to different tensions that exist in the pre-
work and post-work contexts. In pre-work contexts, a CSR social media recruitment
policy mitigates a different set of employer/potential employee tensions. Recruiting
and human resources staff and employers are increasingly relying on personal data
from social media platforms to inform their decisions in hiring prospective employees.
This practice called ‘cybervetting’728 or ‘profiling’729potentially raises new tensions
that threaten what potential employees view as their right to a private identity outside
the gaze of organisational scrutiny730 despite the belief that social media users are
‘publishers in a public realm’.731 Employer use of personal data in this way raises
concerns of discrimination or invisible discrimination against potential employees.
These are well-founded concerns because gleaning personal information in this way is
not a transparent process. Employers are not legally obliged to disclose the sources of,
728 Berkelaar, above n 378.
729 McDonald and Thompson, above n 58, 3.
730 Ibid 4. Compare employees’ entitlement to a private life in Rose v Telstra [1998] AIRC 1592.
731 Ibid.
Chapter 7 Conclusions 251
or processes by which they obtain information on potential applicants.732 This makes
it difficult for applicants to acquire evidence that employers used their online
information in an unlawful way. Employers and recruiters who base their hiring
decisions on personal data obtained in this way are exposed to greater legal risk where
there is no organisational policy or procedure in how personal information is used in
to inform such decisions. Employment legislation733 prohibits any form of
discrimination against employees and potential employees, and places the onus on
employers to prove they did not use discriminatory data to reject a job applicant. A
CSR informed recruitment policy as part of an organisation’s overall social media
governance strategy, makes employers more accountable and transparent for their
decision-making processes.734 Organisations are in a better position to defend
discrimination claims from unsuccessful applicants if they follow a best practice
recruitment policy that informs the way they assess an applicant’s digital information
and how that information is used in the hiring process. However, there is scope for
more research735 in this area to provide guidance on the potential benefits and pitfalls
of using personal and professional social media sites for employment purposes.
In post-work contexts, social media policies extending beyond the employment
relationship can reduce conflict by clarifying when the firm can legitimately claim
ownership of social media contacts made during the course of an employee’s
732 Donald Carrington-Davis, ‘Myspace Isn’t Your Space: Expanding the Fair Credit Reporting Act to
Ensure Accountability and Fairness in Employer Searches of Online Social Networking Services’
(2007) 16 Kansas Journal of Law and Public Policy 237, 241.
733 Fair Work Act 2009 (Cth) s 351.
734 McDonald et al., above n 69, 13. Three-quarters of the research sample either did not
know whether their organisation had a profiling policy in place or indicated that it did not have
a policy. The authors suggested there was seemingly an imbalance between the transparency and
effective communication of policies around profiling, compared to the sometimes aggressive pursuit
of codes determining employee-initiated social media behaviours. At 15, the authors call for an
employee rights-based approach that supports transparency and reciprocity.
735 Ibid. The Australian and United Kingdom study examined some outcomes to profiling that
revealed significant employee privacy, legal and professional implications for human resource
management. One recommendation was an urgent call for an employee’s rights agenda characterised
by greater transparency and reciprocity that will help build community consensus and a greater
balance of interests between employees and employers.
252 Chapter 7 Conclusions
employment. Employment disputes over ownership of client contacts have already led
to costly court proceedings. 736 LinkedIn profiles, for example, often contain a personal
resume with current employer branding. Some employers view the LinkedIn
connections between their employees and clients as valuable assets, which raises
concerns over who owns and controls the employee’s profile and connections once the
employee departs the firm. For employees, interests range from the control of their
virtual identities and goodwill to the ability to reap the benefits accruing from their
amassed audience.737 Employers have interests in promoting their brands, maintaining
access to their customers, and keeping their employees’ work product.738 The law does
not provide clear guidance in the resolution of these new competing ownership
tensions. Courts have tried to resolve these disputes through various laws including
the laws of: confidential information,739 trade secrets740 and agency.741 While there is
uncertainty in digital ownership/property issues,742 employers would be wise, in the
meantime, to avoid potential ownership disputes by explicitly outlining the firm’s
ownership status in relation to branded social media accounts and confidential
information, including account passwords. Alternatively, former employees
contacting the firm’s clients via any form of communication is not a social media
policy issue, but one that employers could address in contractual agreements; for
example, non-solicitation clauses743 or through other lenses744 involving social science
and business. In addition to social media policies that traverse the phases of work,
736 Eagle v Morgan, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012); Hays Specialist
Recruitment (Holdings) Ltd & Anor v Ions & Anor [2008] All ER 216; Whitmar Publications Limited
v Gamage & Anors [2013] EWHC 1881 (Ch).
737 Park and Sánchez Abril, above n 2, 540.
738 Ibid.
739 Hays Specialist Recruitment (Holdings) Ltd & Anor v Ions & Anor [2008] All ER 216.
740 Eagle v Morgan, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012).
741 Whitmar Publications Limited v Gamage & Anors [2013] EWHC 1881 (Ch).
742 Park and Sánchez Abril, above n 2, 582. The authors propose a publicity rights framework to
distinguish between personal from the professional in defining the scope of employment. The authors
propose the rubric balances the employee’s financial, social, and emotional interests in social media
while balancing the employer’s legitimate business claims.
743 Patrick George et al., Social Media and the Law (LexisNexis Butterworths, 2014) 70.
744 Park and Sánchez Abril, above n 2, 54. The authors discuss publicity rights as a new quasi-property
right.
Chapter 7 Conclusions 253
research has shown that employers should consider additional risks such as crisis
management when considering their overall approach to social media governance. See
Figure 7.1.
Figure 7.1. Corporate social media governance (adapted from @philmennie, Twitter
#ECIIA2015 22 September 2015)
254 Chapter 7 Conclusions
7.4 Conclusion
To conclude, a new employee-focussed framework provides employees and
employers with greater clarity and certainty surrounding the regulation of personal
social media use. Employees can limit blurred boundaries that shape their online
identities through better employer practices and the law. The proposed framework in
this thesis can protect personal autonomy interests and provides employers with a
principled template from which they can enforce legitimate and reasonable directives
that benefit both parties’ interests. This thesis challenges employers to move away
from a patchwork of social media policy development with nuances of restrictive
directives that usurp an individual’s identity preferences, participation and speech
interests on social media. Instead, I implore employers to advance towards a more
sophisticated policy framework that is robust for the changing nature of work. In terms
of overall social media governance and incorporating additional tensions, further
research may uncover a more comprehensive account of CSR effectiveness and
efficiency in the regulation of corporate stakeholder interests in this highly contested
space.
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Appendices 293
Appendices
Appendix A
2 Sticks Digital
294 Appendices
Appendices 295
296 Appendices
Appendix B
ABC Social Media Policy
Appendices 297
298 Appendices
Appendices 299
300 Appendices
Appendices 301
302 Appendices
Appendices 303
304 Appendices
Appendices 305
306 Appendices
Appendices 307
308 Appendices
Appendices 309
310 Appendices
Appendices 311
Appendix C
Adidas Social Media Policy
312 Appendices
Appendices 313
Appendix D
Coca Cola Social Media Policy
314 Appendices
Appendices 315
Appendix E
Dell Social Media Policy
316 Appendices
Appendix F
KPMG YouTube Social Media Policy
Appendices 317
Appendix G
La Trobe University Social Media Policy
318 Appendices
Appendices 319
Appendix H
Nordstrom Social Media Policy
320 Appendices
Appendices 321
Appendix I
Peter Novelli Social Media Policy
322 Appendices
Appendices 323
324 Appendices
Appendices 325
Appendix J
Telstra Social Media Policy
326 Appendices
Appendices 327
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