As the popularity of social networking sites like Facebook, Twitter and MySpace, continues to grow, employers are progressively finding that employees are turning to such outlets online to air grievances about their employer and fellow colleagues. The extent of damage that can potentially be caused from as little as a click of a but ton is a serious concern for all organisations. In addition to taking disciplinary action against current employees (in the correct circumstances), there are other proactive steps that can be implemented to curb the scope of damage and repair the impact of any repercussions.

A derogatory comment that is published on a social networking site is judged to be defamatory if it contains a false allegation against the employer, resulting in the undermining of the organisation’s reputation in the eyes of "right thinking" members of society. For the material to be slanderous it has to be in permanent form and clearly identify the employer (either directly or by inference), and the meaning of the statement must be such that, in their natural and ordinary sense, the words are capable of damaging the employer’s reputation. For instance, it would be libellous if an aggrieved employee posted a message on a website falsely alleging that his or her retailer employer manufactured products in overseas sweatshops. Photographs or cartoons are also capable of being disparaging if they wrongly associate the employer with some discreditable act such as, a photograph edited to give rise to an association between the employer and animal testing. Even in cases where the statement is true, circulating the information may still be prohibited and provide the employer with grounds on which to seek to have the material taken down.

As soon as an employer is aware of an employee issuing a negative statement on the internet, evidence should be collected for future reference in case this is needed for disciplinary proceedings or legal action. Evidence can take the form of screenshots or print outs of the insulting material, along with records of any complaints received from customers or any proof of harm due to the posting, however this must all be obtained through lawful means, thus hacking into an employee’s account is illegitimate practice. The coverage of the distribution ought to be explored too to establish the access available to the remark. On the occasion that the person responsible for publicising the deprecating information is unidentifiable, the employer should contact the relevant social networking site as email addresses and similar account details are commonly held by the website host.

The employer is responsible for ensuring that the material is removed and should firstly provide the employee with written notification that their postings and the associated alleged breach are under investigation by you, the potential remedies that you may engage and a demand that he or she get rid of the offending material from the website immediately. You might also consider commencing disciplinary action against the employee in line with the company’s disciplinary and grievance policy – as this is a new area of investigation however we would recommend you proceed with caution and speak to your HR Advantage Consultant for advice. The next step is to formally request, via a letter of claim, that the social networking site takes action to immediately and permanently eradicate the unpleasant message. Some social networking sites, including Facebook, have an automated reporting system.

In the event of a former employee releasing a defamatory comment, the individual can be given notice of the causes of action that the affected employer has against them. These could include damages for breach of contract, if the former employee’s contract of employment and/or any compromise agreement contains post-termination restrictions, such as clauses prohibiting the disclosure of confidential information.

Finally, employers should also be aware of the fact that employees can defend a claim of defamation if they are capable of demonstrating that:

• the content of the material in question is true (regardless of underlying motives for writing it) ;
• the information is an honest opinion on a matter of public interest;
• the statement was made in pursuance of some legal, moral or social duty in the public interest (i.e. whistle blowing); or,
• the remark is covered by some form of legal privilege.

Furthermore, if the social networking site can show that it did not know, and had no reason to believe, that it had caused or contributed to the publication of a defama tory statement, it will have a defence available to it of "innocent dissemination", according to section 1 of the Defamation Act 1996.

As with many potential HR issues, your best course of action is to be prepared to make sure you know what action to take and to ensure that staff also know what is expected of them and how they will be dealt with if they fail to adhere to the expected behaviour. In this particular case, the place to start is with a clear policy on social networking – please get in touch with your HR Advantage consultant if you would like to arrange for such a policy to be created for your organisation.