Free Speech and Corporate Social Media Policies: Where to draw the line?

When the internet first began in early 90s one of its defining characteristics was anonymity. People created Hotmail, Yahoo and Aol accounts with usernames like sexysmuff1977 or surferdude12. The old internet was very private and had little connection with one’s private, professional or civil life. That era is over, since the rise of Facebook and smartphones the three spheres of a person’s life have merged. Never before has one’s employer had such a direct view into one’s private life. Over the same period of time, organisations have never been so conscious of their ‘corporate responsibility’. The same organisations that will shamelessly outsource jobs and make long term workers redundant are desperate to seem inclusive and diverse. Many of these organisations require their workers to sign social media policies that significantly restrict what their workers can say on social media. How do these policies affect free speech? And what are the potential risk for employees of such organisations?

Probably the most infamous case of corporate social media policies conflicting with free speech was when feminist Clementine Ford named and shamed a man on Facebook who called her a ‘slut’ among other things not worthy of being repeated. His facebook profile named his employer and she lobbied that employer to terminate his employment. They did. Another significant case was when a man working at the Melbourne Airport jokingly shared ISIS propaganda and implied that he supported it (sarcastically). In that case the man was terminated, but, the Fair Work Commission determined that the sacking was unlawful.

It’s easy to imagine why an organisation would want to restrict the free speech of their employees. In this era of faux outrage, an organisation can easily become the subject of a boycott campaign and significant damage can be done to its reputation. In such cases, the easy option would be to terminate the problem employee, release a media statement distancing themselves from the offending social media post and hope things return to normal. The question then becomes does an employer have the right to discriminate against people with unpopular views or who say questionable things on social media?

There are two arguments one could make: The first is a free speech absolutist position. This view is that free speech is more than just a legal right not to be prosecuted by the government for one’s speech; but, that people have a right to express their views without being fired from their employment or being no-platformed. (A recent example of this was Nicola Wright’s article on the no platforming of the Men’s Rights documentary Red Pill) This view puts free speech on par with other protections employees have around their religion, gender and sexuality. Theoretically at least, political views are already covered under anti-discrimination legislation.

The second view is that free speech is limited to protection from coercion by the government, however, organisations are free to discriminate against people whose views contradict their corporate values. I’m quite sure that David van Gend from the Australian Marriage Forum is glad he decided to become a doctor in private practice and not a pilot for Qantas, since Qantas Chief Executive, Alan Joyce has been actively campaigning for marriage equality. It should be noted though that the right to discriminate is not one organisations enjoy in other areas.

The common law position on these cases is still evolving, and it’s not yet clear where the line will be drawn. A possible middle position may emerge where people’s right to free speech will be protected provided nothing on their social media account identifies their employers. In practise, I suspect that this is easier said than done. In case of the man outed by Clementine Ford he was using a personal Facebook account and the only mention of his employer was in his profile section. This was not a work Facebook account and organisations have a clear right to control social media accounts they own or are clearly used for work purposes.

The response of many people to this is to create two separate profiles, one for work and one for home. However, this doesn’t guarantee protection. Had the man not had his workplace on his Facebook profile, a quick google search may have found his Linkedin profile or description on his company’s website. It’s not hard to imagine social media mobs still targeting someone’s employer in such a situation. How would the Fair Work Commission rule in such a situation? Will the law come down on free speech or on the right of an employer discriminate? Only time will tell.

Justin Campbell is on the executive committee of LibertyWorks

12 Comments on "Free Speech and Corporate Social Media Policies: Where to draw the line?"

  1. I think the policies being so open to the agendas of management or the HR dept is a big issue. My view is that if you’re not speaking on behalf of the company then it’s not for your employer to get involved.

    • I agree. I think the only you can not have that view is if you reject the notion of anti-discrimination, that basically an employer can sack a worker for any reason.

    • I think it’s reasonable to set out requirements and expectations in contracts. Most social media policies refer to representing the business. That’s actually why I would never put where I work on my Facebook. That wouldn’t even be making representations on my employers behalf but I have to always be vigilant against it being construed as such as a convenient excuse for termination.

    • Personally I think common law would resolve these issues over time and both employers and workers would come to understand their responsibilities, as you do Dagny with your facebook profile. But HR law is now so big and controlled by regulation and statutory bodies that common law and common sense are no longer relevant. It’s virtually impossible for either employees or employers to determine where the boundaries are…

    • How about if your comments offend the customers of your employer?

    • Luke McNamara In a free society, I’d go back to the terms of employment between the parties and legal precedent. I’m sure many employees have offended many employer customers over the years.

    • In a free society either party can end the terms of employment voluntarily

    • Luke McNamara Not if you contract otherwise.

    • That’s certainly one view. The other view is a free speech absolutist view. I suspect the common law will require that your social media profile be in some way linked to your employer. Otherwise, it would be an unlawful dismissal.

  2. Corporations threaten everything because they are fictions created by the elite to control people’s lives! Corporations take over by putting the little people out of business, gaining monopolies over all sorts of franchises, then they force people to work for substandard wages and conditions, the alternative is they can starve. The corporations own and run the governments, which are them selves corporations, so everyone is at the mercy of the tyrants at the top who care little to nothing about the well being of humanity or the environment.

  3. maybe fill those lovely tents with REAL REFUGEES !!!!

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