Freedom of speech – the notion that citizens have a right to voice their views, grievances and criticisms – attracts a lot of attention.
In America, the First Amendment protects Americans’ right to freedom of speech, which enables them to have their voices heard. In Australia, we have an implied freedom of speech – while not explicit, it affords us similar rights in voicing our opinions. We often pride ourselves on being able to have open conversations and debate.
However, the notion of free speech has hit a bump in the road with social media. While it has clearly enabled individuals to voice their opinions, by the very nature of the platforms, these individuals have become publishers, which leads to more scrutinisation of their comments.
Making comments in person, at a BBQ or a work function will naturally come under far less fire than those published online in a public forum.
In 2011, logistics company Linfox terminated an employee citing “distasteful” comments about his managers on Facebook. Fair Work Australia (FWA) later deemed it to be an unfair dismissal, stating the comments were within the employee’s right to free speech.
While the case was not clear-cut, FWA also noted that the absence of a social media policy and adequate training had impacted Linfox's claim.
A shift over the past couple of years has seen a new phenomenon – brands are increasingly becoming responsible for their employees' published thoughts.
Last year, a then senior staffer at PwC stepped down from his position on the board of the Australian Christian Lobby after the company was challenged via social media about the apparent conflict with PwC’s values.
PwC is a vocal supporter of marriage quality, and diversity is an important aspect of the company's values. There was a stream of comments questioning why a senior employee would be on a board that contravened that stance.
In an age of transparency, customers are holding brands accountable not just for what their employees say and do, but their associations.
What about losing your job over an emoji?
The Australian Public Service Commission (APSC) recently published the latest APS Code of Conduct for employees commenting in the public domain, specifically on social media.
A frenzy ensued, as some thought the implications could be as far reaching as APS employees being fired for “reacting” to Facebook content that criticises their employer.
While this was quickly quashed by the APSC, it further highlights employers' concerns when it comes to how their staff represent the brand online. On the flip side, the fear that social media has become such a minefield for employees – that even giving the thumbs up to the wrong piece of content on Facebook – could see them looking for a new job.
There is no doubt that the legal landscape where social media and freedom of speech intersects will be reshaped in the coming years.
Given the storm that seems to be brewing, what are the options for businesses and individuals when there is a limited amount of legislation and case law?
For businesses and organisations, it’s impossible to control or police what is being said by those you employ. The best course of action is to have a strong social media policy, which includes training staff, not just on the company values and its code of conduct, but also the fundamentals of social media use, and the very public nature of these platforms.
For individuals, there is some well-known social media wisdom when it comes to posting and commenting – never publish something you wouldn’t want your parents or your boss to see.