N ot that long ago, in the pre-internet age, we had few options but to keep our thoughts to ourselves, especially when it came to work: at most we might tell our closest colleagues about an argument with the boss or our department head, or perhaps wait to get home and cry on the shoulder of a loved one. Now social networks allow us share our grievances with the world, instantly. But the problem is that services such as Twitter and Facebook have blurred the line between our private and public lives. For example, is sending out a tweet criticizing our boss exercising the right of free speech or is it grounds for dismissal?
The last couple of years have seen several companies sack employees who have used Facebook to complain about their working conditions, or who have criticized colleagues on Twitter. The speed with which social networks have developed means that the law is still running to catch up. The result is that the courts make their own rulings, often contradicting each other, regarding what might be called inappropriate use of such sites and services.
An intern was fired after writing that her first day had been "boring"
For the media, the question is a delicate one as information is raw material
"The lines between personal and professional use are difficult to discern"
"Companies also look online for information about possible candidates"
Companies are increasingly vigilant about what their employees say about them on social networking sites. More than 94 percent of Twitter users follow at least one company, according to research. This has led large organizations to apply internal codes of conduct to prevent employees from damaging their corporate image or from creating problems internally.
In the case of the media, the question is even more delicate, given that the raw material their employees work with is information and opinion. The Washington Post, the BBC, Reuters and Bloomberg are among those which have already drawn up codes of conduct for their journalists preventing them from leaking a scoop, making comments that are contrary to the organization's editorial guidelines, or using inappropriate language. But fears have already been raised that such limits are in fact veiled censorship, and go beyond editorial control.
As the birthplace of social networking, and a highly litigious society, it comes as no surprise to learn that there have already been several high-profile cases of alleged misuse of social networking in the United States. Dawmarie Souza, who worked for Connecticut-based private ambulance company American Medical Response, was fired last year after saying on her Facebook site that her boss should be in a psychiatric hospital. The National Labor Relations Board (NLRB), the government agency that deals with unfair dismissal cases, sued the company, saying that its policy regarding its employees' use of the internet was "too vague" and "contained legal dispositions."
The NLRB argued that employees have the right to discuss "the terms and conditions of their employment with others." The company backed down and an out-of-court settlement was reached in February. The fact that Souza had made her comments from home, and on her own computer, was considered fundamental to her case.
Kimberley Swann, a 16-year-old who described her first day as an intern at Ivell Marketing & Logistics as "boring" on her Facebook site, was less fortunate. Her boss sacked her the next day, despite the fact that she had not mentioned the name of her employers. A support group for her was set up on Facebook in response. In Spain, the Catalan regional government suspended a high school Latin teacher for three months for making insulting and threatening comments against the school's head teacher and other staff on Facebook, calling on students to join his hate campaign.
"There is no clear law that addresses this specifically. The debate over whether companies have a right to read their employees' emails has now been transferred to social networking sites, although the lines between personal and professional use are more difficult to discern. Rather than a list of rules, companies should set out guidelines to help employees not put their foot in it," says Jesús Herranz, who heads the new technologies department at law firm BDO.
It is important to distinguish between cases where employees who have uploaded photographs of themselves on Facebook partying after they have taken sick leave have been sanctioned or even dismissed and cases where an individual is expressing a personal opinion, as one might round the water cooler or in the canteen, but by posting it on Facebook or sending out a tweet, reaching dozens, if not hundreds of people. In all likelihood, given that companies have no clear policy on the matter, discovery is largely a matter of chance.
A survey by employment agency Manpower shows that three-quarters of employees say that their companies do not have a clearly outlined policy regarding the use of social networking sites at work. "This suggests that the majority of companies are taking a wait-and-see approach before establishing their own policies regarding the use of social networks by employees," says the survey.
"In accordance with Article 20 of the Workers' Statute, an employee's obligations during working hours are laid out in their contract of employment. This means that they must fulfill their contractual conditions and avoid causing damage to the company by their behavior. This is where we have to distinguish between what somebody says on a social networking site where they are protected by the right of free speech, and what they say as a representative of their company," says Paloma Llaneza, a lawyer and expert in new technologies.
Companies are aware that their image can be profoundly affected by what is written and shown on the internet. This means that employees must understand the implications and consequences of what they say and do on the net about their company.
In response, growing numbers of companies are now employing what are sometimes called community managers. Demand for these professionals grew eightfold last year, according to a report by online employment agency Infojobs.
At the same time, employees are increasingly acting as their own community managers, taking care to look after their online image. Social network sites can be a way of finding employment or moving up the career ladder, which is one reason why some workers now go out of their way to cultivate good online relations with their boss.
"Companies also look online for information about possible candidates: a CV is not the only source of information about a job applicant. We have to be aware of what our online presence says about us. It is important to belong to social networks, but we have to make sure we project the right image," says Marcela González of Infojobs.
But what is fair game from a research point of view? And when do employees' personal expressions cross the line into the professional sphere? "A balance has to be found that respects the rights of the employee and those of the company. There is still no legislation about the use of new technologies in the work place, and nothing about the damages that a company might suffer from the opinions of an employee either in traditional or electronic media. There is a lot of legislation about not acting in good faith, and that is what many employees have used to justify sacking somebody who has damaged a company's reputation, or sought to damage it. Collective bargaining agreements regulating the use of new technologies are an appropriate way to look for a confluence of interests," says Pepe Callejas of Spanish labor union UGT.
Twitter and Facebook have become two of the most widely used means for people to express themselves, and to follow the opinions and comments of those they admire. But this has brought journalists, for example, into conflict with their employers. Take the case of CNN's Octavia Nasr, who has worked for the television news station for two decades, covering the Middle East. She sent out a tweet mourning the death of Ayatollah Mohammed Hussein Fadlallah, who for Shias in Lebanon was a revered cleric.
"Sad to hear of the passing of Sayyed Mohammad Hussein Fadlallah... One of Hezbollah's giants I respect a lot," tweeted Ms Nasr.
Condolences poured in across the region, from Jordan's King Abdullah - a Sunni - to Iraq's prime minister, and the ruler of Kuwait. But Ayatollah Fadlallah had been named in 1995 by the US treasury department as a Specially Designated Terrorist under a presidential executive order.
A CNN official said Octavia Nasr was leaving the US TV news network because her credibility had been "compromised."
Aware of the dangers, some media have already laid out clear and unequivocal rules for their staff. "All Washington Post journalists must give up some of their privileges as individual citizens and accept that comments they make on social networking sites are, to all intents and purposes, the same as what would appear under their byline in our newspaper or website," says the venerable newspaper's latest style guide. The Post not only prohibits its reporters from "writing or publishing anything that could reflect political, racial, religious or sexual favoritism," but also bars them from following groups through social networking sites that could damage the paper's reputation.
Reuters news agency goes further. "The distinction between the private and the professional has almost disappeared, and therefore, you should accept that the personal and professional in the context of social networking sites is the same thing, regardless of how hard you might try to keep them separate."
Reuters' rival Bloomberg issues its reporters the following advice: "Ask first, then tweet." Almost all media ban their employees from putting out scoops, commenting on how news gathering is carried out, or from engaging in discussions with readers or rival media.
Some journalists have already come to the conclusion that with such tight guidelines it is simply safer to steer clear of social networking sites. The Washington Post's Raju Narisetti closed his Twitter account after he was taken to task for criticizing US government health policy. Other media such as The New York Times leave it up to journalists to use their own criteria and common sense when posting on social networking sites.
"As regards journalists, when they are not writing for a publication, representing it, or acting independently, they are not covered by freedom of information legislation, but by the laws governing the right of free speech," says Llaneza.