Beware the perils of blogging, Facebook (Legal view)

The hidden dangers of the web at work

With the legal frontier of employee blogs no longer on the horizon, an entirely new set of workplace dangers is testing the threshold of Canadian employment laws.

There are several significant workplace issues related to blogs.

It’s not just about blogs. Social networking sites such as YouTube, MySpace and Facebook allow employees to post personalized web pages in online communities, generating similar concerns for employers as a blogger does, except employees access these sites in far greater numbers. Here, organizations are prone to the same informational leaks and disciplinary problems blogging creates.

Facebook, for example, encourages users to post a biography disclosing, among other details, their place of work. The website then links employees of the same organization together in an online network, where musing about the company becomes public discourse. Without any network administrator, employees banter on about the company’s affairs, automatically placing their employer’s name beside each post. In January 2007, eastern Ontario grocery chain Farm Boy fired several employees after discovering their network where employees admitted to, among other indiscretions, theft from the company.

Employees can be disciplined for conduct outside of the workplace. Though most blogs are created and maintained outside of working hours and on employees’ personal time, employers maintain the legal right to discipline or dismiss employees for off-duty conduct. As a general rule, discipline is properly administered when off-duty behaviour brings an employer’s reputation into disrepute. Recently, I was consulted by an ex-employee of a large Canadian electronics retailer, who terminated him for cause after coming across a video displaying him in his company attire while improvising a scene to an action flick both inside and in front of his store.

The scene had been posted on the popular video sharing website YouTube. While the law of dismissal typically requires an employer to first prove that the misconduct actually occurred, the proof in this case was undeniable.

Posts could breach confidentiality clauses. The ubiquity of the Internet allows blog and web postings to instantaneously disseminate information to a global audience. Courts are, therefore, more likely to respect an employer’s decision to immediately fire an employee whose blog posting compromised, or potentially compromised, a competitive advantage.

Beware of libel. Employees can be personally liable for defamation claims if postings are negligently or maliciously made. If such postings occurred while the employees were carrying out the duties of their job, corporations may begin to see their names on statements of claim as well.

Beware of virtual harassment. Two British Columbia employees of aeronautics giant MacDonald Dettwiler were fired for distributing a vulgar e-mail at work that detailed the sexual gymnastics of an overweight female co-worker. They viewed it as a prank. The relative ease with which blog and web entries are created, disseminated and maintained means the evidence is unlikely to ever disappear. Postings of jokes, pictures or stories can, therefore, be traced back to their originators, even years later and employers may be vicariously liable.

Time theft. Wasteful periods during working hours amounts to “theft of time” and can, in appropriate circumstances, be cause for dismissal.

Employees risk criminal charges. Some postings can violate criminal standards, such as hate propaganda or obscenity laws. Recently, an Ontario Superior Court judge accepted, as an aggravating sentencing factor, evidence of the accused’s sexual exploitations that he had posted on his personal blog.

What employers can do

There are a number of things employers can do to combat the problem.

Keep assets in-house. Corporations spend millions of dollars protecting their brands and proprietary materials. Without vigilance, they are gambling with the risk of eventually losing a legal right to that property. Employers need to create a bulletproof blogging policy and ensure it is properly distributed, maintained and enforced. Employees, when well aware of their boundaries and the consequences of overstepping them, are less likely to cross that line.

Draft comprehensive employment contracts. Prepare employment contracts that specifically define the violation of blog or Internet policies as cause for dismissal. Even if a judge may ultimately disagree, the employee will be dissuaded from waging a legal war with favourable contractual language in the employer’s corner.

Consider workplace training. Employers should educate employees about the perils of their postings rather than waiting to respond once it’s too late.

Daniel Lublin is a Toronto employment lawyer, specializing in the law of wrongful dismissal. He can be reached at [email protected] or visit his firm’s website at

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