Have you included 'virtual harassment' in your workplace policies?

In early January, music icon Taylor Swift was subject to vile harassment in the form of deepfake images that used artificial intelligence to create nude images of the popular celebrity.

The images were widely shared on social media and led Microsoft to enhance its technology to prevent future abuse of this kind.

The unfortunate incident serves as yet another reminder of the perils of the virtual environment – which is one of the reasons why Ontario is updating its workplace legislation.

With Bill 190, the province is planning to amend the Occupational Health and Safety Act to include “virtual” harassment.

The definitions of “workplace harassment” and “workplace sexual harassment” will add “including virtually through the use of information and communications technology” after “workplace.”

While it’s not a huge change to the law – as virtual or online harassment would already be covered by Ontario’s legislation – the additional language does add clarity “for those who might not have been aware that harassment in the online sphere is covered too,” says Melanie McNaught, partner at Filion Wakely Thorup Angeletti in Toronto.

It’s an important change because the virtual environment was not named in the province’s health and safety rules beforehand, says Ani Zheku, an associate at Sultan Lawyers in Toronto.

“It’s trying to play catchup, so to speak, to meet the demands of the modern-day workplace.”

What’s different in investigating virtual harassment

While the basic principles of in-person and virtual harassment may be the same, there are a few differences when it comes to investigating allegations of this behaviour.

For one, it can be more challenging because the technology used may be beyond HR or an employer’s control, says McNaught.

“It becomes difficult, sometimes, for the employer to remedy the harassment or to do anything about it if it's posted online and [the employer] doesn't have control over that particular app, or wherever it's posted. The employer can't delete a tweet that somebody else posted on Twitter, for instance, or can't delete somebody's blog or Facebook post.

“That creates some practical problems for employers when they're dealing with this… oftentimes, you'll need to get the cooperation of the social media company to take stuff down if the person who posted it won't.”

In addition, some posts or messages may appear temporarily or be removed, so it can be challenging to get copies of the relevant texts or posts that may constitute harassment, she says, “and they would need to preserve those for their investigation.”

This kind of investigation can also be more time-consuming because of all the necessary documentation that has be disclosed, says Zheku, “so copies of any text messages, WhatsApp messages — anything in the virtual space, any evidence, that will need to be assembled and looked at and analyzed closely, so that poses its own challenges.”

Could emojis be considered sexual harassment?

Another concern for employers in investigating this type of misbehaviour is the use of technology. For example, if an employee “likes” an inappropriate post or forwards an inappropriate meme, could that be considered harassment?

Context is key, says McNaught.

“Who originated the post when they were liking it or forwarding it? Were they directing it to a particular individual in the workplace? And what’s the history between those people? Are they friends? What's their working relationship?” she says.

“To determine whether it's harassment, you'd have to do a broader look at all the circumstances around it.”

Sometimes, the harassment can be subtle and require a greater level of scrutiny, says Zheku. For example, a paper trail of text messages may not look bad, but if a person is using emojis in a way that isn’t appropriate, where do you draw the line?

“It creates a lot of complexity because it is novel, and it's something that employers usually have not had to deal with previously. So, there are new things coming into play,” she says.

“It's very tricky… in cases like that, where there's a lot of gray areas… the totality of the evidence should be considered all together.”

A 2023 report out of Alberta found that 37% of workers experience sexual harassment in the form of online messaging and text messages, while another 54% have witnessed this behaviour.

Technological literacy needed

Also an issue? The whole area of virtual harassment involves newer tech that goes beyond emails or tweets – and it’s quite possible HR or investigators aren’t familiar with how apps such as WhatsApp or TikTok work, says McNaught.

“If you're investigating harassment using a particular kind of social media, then I think it's important to understand the basics of how it works. For instance, how does Snapchat work? How do people connect on Snapchat?” she says.

“There is some technological literacy that's required to investigate these cases to understand what the respondent did so you can assess how blameworthy that was.”

While an employer may not formally offer the WhatsApp application to employees, for example, there are often casual group chats among staff to talk about work-related matters, says Zheku.

“That's something that the employer would need to familiarize themselves with, how the WhatsApp application works, just to cover all their bases.”

Privacy considerations with online harassment

Privacy is another particular challenge when it comes to online harassment.

For example, certain documentation such as texts or instant messages may include graphic images that are considered disturbing in nature, says Zheku, “so it needs to be handled very carefully and, of course… it is the investigator’s job and their role to safeguard all confidential information.”

Plus, if the alleged perpetrator of workplace harassment uses their personal account, there could be further issues for HR in investigating the offensive messages.

“If something is posted publicly, then there's less of a privacy concern. But if it was a private exchange of messages, for instance, then you would need the cooperation of one of the parties to that exchange to get your hands on it to investigate,” says McNaught.

However, if a person is doing something untoward using the employer's resources, then normally employers have a policy about “acceptable use” that says you can't use its IT resources for harassing purposes or for posting inappropriate material, she says.

“Coming out of this, I think it's going to be even more important for employers to have those kinds of policies in place [where] they can put employees on notice that their communications may be accessed as part of an investigation.”

Updating workplace policies

Assuming this amendment passes in Ontario, it will be important for employers to look at their harassment policies, as well as their acceptable use IT policies to make sure that they cover the possibility of online harassment, says McNaught.

“It's important to make sure that employees are aware of this as well. So, by revising those policies and sharing them with employees, you can make employees aware, and then, hopefully, they will think twice about doing this kind of thing.”

In a virtual environment, many people can feel less inhibited, unlike talking to or interacting with somebody face to face, says Zheku.

“Also, because it is virtual, they may feel that there is less employer oversight, meaning that they may think they can get away with this type of behaviour… and think that it's less serious, when in fact, that's not the case,” she says.

As a result, it’s advisable for employers have workplace policies in place that specifically address virtual harassment, she says, “otherwise they could encounter problems down the road.”