The Elon Musk Tweet
As most entrepreneurs and business owners the world-over know, Elon Musk is the CEO and, until recently, chairman of the board of Tesla. In these positions, whenever Elon speaks or writes, it has a profound affect not only on the reputation but also on the share price of Tesla. Knowing this, I was stunned when Elon recently tweeted that British diver- Vern Unsworth who rescued the young boys of the Thai football team from near certain death- was a paedophile and child rapist. There was, at the time of Elon’s tweet, no evidence of the truth or veracity of such accusations. Unsworth is now suing Elon for defamation for a claim of £ 57,000.00 (approximately ZAR 1,098,960.00).
Regulated Twitter Use
The use of Twitter and other social media platforms has become part of many a business marketing and PR strategy to grow brand presence and to attract new customers. As business lawyers, we have always advocated that employing such a social media strategy must be done with the awareness of the risks that any improper tweet or post could have on the reputation of the business. One way to help mitigate such risks, from an employment point of view, is to regulate the use of social media by a business through a comprehensive social media policy.
Can an employee be fired?
But what about that employee who tweets or posts comments, views and opinions that are not necessarily that of the business and are disclaimed using that old chestnut “all views are my own” disclaimer? Can such an employee whose tweet harms or potentially harms the reputation of the business be fired?
In general, there is no reason why not, especially where the comment or views can be contextually linked to his or her employer. In today’s connected world, the “all views are my own” disclaimer by an employee (even when posted on his or her personal social media account) cannot be relied upon and it must be assumed that any posting on social media could almost always be viewed as a statement emanating from the business.
Rhiannon Cambrook, Managing Director of Zest Recruitment and Consultancy and Solicitor states: “Tweeting is seemingly an innocent way to pass the time and keep up with your network. With 74% of people using it as their primary news source, each tweet that is posted has the potential to be seen not just within the immediate network, but by hundreds, thousands or even a million people. The need to mind one’s p’s and q’s has never been greater”
When an employee uses social media, even in his or own time and on his or her personal social media account, the world is waiting to take on news of any kind. This is a death trap all of its own as frustrated or angry or rebellious or bored employees vent their feelings and beliefs on social media. The lines have become blurred between the personal space of the employee and that of the business and because of this, fairly or unfairly, thoughtless posting may lead to a business suffering unimaginable reputational damage as well as face the real risk of a civil suit for defamation. This was the case with Elon who, after posting his views about Unsworth, was not only sued for defamation but also resulted in Tesla’s share price falling by nearly 3% in a few days!
Where an employee’s tweet or post negatively impacts upon a business, especially where such causes the business a risk to reputational damage or even foreseeable risk to reputational damage, such a business has a reasonable right, in my view, to protect its interest. This may, itself, be the foundation upon which an employee could be fired.
Prevention better than a cure
So, what can employers and employees do to avoid the death trap of tweeting on Twitter? Well, its starts with applying common sense in the first instance: Realise that the whole world is now connected and it makes very little difference to readers of social media content whether you tweet or post in your own name or that of your company. Secondly, refrain from posting on debatable issues where opinion (informed or uninformed) is divided. Thirdly, never post or tweet in a state of anger or frustration as you will not be thinking clearly to objectively determine the appropriateness of your tweet.
As business lawyers, we often advise our business clients that prevention is better than looking for a cure and one way to achieve this, in the employment space, is to develop policies to train and guide employees on the use of social media. Given that the reputation of any business in a connected world is a protectable interest, any threat thereto by an employee tweeting content that undermines such reputation is one that may very well result in the employee’s dismissal.
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