Clifford Gouldson Lawyers

Snapchat: How to lose your job in 10 seconds

Print Version

8/11/2016

Social media use by employees has become a legal minefield for both employees and employers alike.  Snapchat might seem less risky but we should all remember that just because something is gone in 10 seconds that there won't be consequences.

Snapchat is a versatile messaging app were users can take a photo or video with it (called snaps) and send it to approved snapchat friends. Alternatively, you can add the photo or video to your ‘story’ that is visible to all your approved snapchat friends for up to 24 hours. The unique feature of Snapchat is that users can only view snaps for up to 10 seconds, and then they disappear forever.

Currently valued in excess of $20 billion and with over 2 million monthly active users in Australia Snapchat is increasingly being used by businesses to expand and promote their products and services while appealing to primarily the under 30s demographic.
 

How does Snapchat affect employers?
 
Any misuse of Snapchat on behalf of the employee whilst in connection with their employment, may amount to an employer being held vicariously liable for their actions. This issue of vicarious liability was raised in the case of Eatock v Bolt* where Andrew Bolt had posted content, that was created outside of work hours, on his employer’s (the Herald Sun) blog webpage that was deemed to be racially discriminative. The Herald Sun was found liable for Bolt’s discriminative content.
 
The lesson for employers is that the case of Eatock v Bolt appears to open the doors for employers to be potentially liable for the conduct and actions of employees on social media avenues, so long as there is a connection with the employer’s business. Given the fleeting nature of Snapchat’s 10 seconds time limit, employees may be more inclined to use Snapchat over any other social media avenue for misconduct. It is foreseeable that any misconduct by employees through using Snapchat at work, or in connection with their employment may allow for liability to be established against the employer, instead of the employee.
 
Potential consequences of using Snapchat in the workplace
 
Issues of particular concern in the workplace are as follows:

Bullying and harassment
 
The unique ‘auto-destruct’ function of Snapchat creates an avenue for bullying and harassment to occur in the workplace.

The app encourages users to use Snapchat as a seemingly harmless tongue-in-cheek way to take a photo or video, but when that seemingly harmless photo is of another colleague, it could lead to allegations of bullying, sexual harassment, or discrimination.

Breaches of privacy
 
It is all too common for employees to take Snapchat photos and videos of themselves sitting at their office desk, or around the office generally. This may easily result in breaches of confidential information and privacy. If a photo or video is sent to an approved Snapchat friend, or posted as a personalised story on Snapchat that contains client information or personal information, this could lead to breaches of privacy under the Australian Privacy Principles.

Employee serious misconduct
 
If employees are in breach, or are deemed to have acted outside the scope of their workplace social media policy, this may be considered serious misconduct and result in termination. So it's important for employees to be made aware that serious misconduct does include:

  • a wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; or
  • conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business.


Breach of copyright
 
When receiving a Snapchat photo or video, if fast enough, users are able to screenshot and retain the image. According to the Australian Copyright Law, ownership rights to a photograph lies with the photographer or the original artist. Although Snapchat’s Terms of Service are non-specific on this point, it is important to note that you may potentially infringe copyright laws during the course of your employment.
 
Minimising the risks of Snapchat
 
With social media having such a strong presence in both our work and personal lives the most effective way to reduce the risk to business is with an up to date, comprehensive social media workplace policy.
 
A dedicated social media policy will:

  1. clearly state the employer's position on the use of Snapchat and other social media in the workplace;
  2. create employee limitations around what is acceptable conduct and what is not;
  3. increase employee awareness around the consequences of breaching the social media policy, and issues of bullying/harassment, privacy, confidentiality and copyright breaches.

Training for employees around the social media policy and what does and does not constitute appropriate use of social media is also recommended.

If you require any advice on the creation of a social media policy in your workplace, please contact our employment law team.
 
Alternatively, if your business already has a social media policy, it may be time for a review to ensure that your business remains compliant and relevant with the current technological changes

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