Recently Fasken Martineau, the law firm of which I am counsel, adopted a new Social Media Policy. This is now becoming quite common among Canadian professional firms and corporations. The policy is intended to encourage the use of Social Media while at the same time minimizing any potential risks to the firm. What might these risks be, you may ask.  Defamation is the first that comes to mind.  Someone's postings on Twitter or Facebook may libel another person.  There is also concern that firm trade secrets or confidential information may be intentionally or inadvertently posted.  Other postings may be considered to constitute harassment or hate speech.  Still other postings might be offensive or otherwise adversely affect the reputation of the poster and his or her organization.

But aren't Social Media postings personal?  What right does an employer have to dictate to its employees about what he or she may post on a Social Media site?

There are a number of ways in which the employer may be adversely affected by Social Media postings.  This possibility can give the employer  a legitimate interest to protect.  First, the employee may post using the employer's equipment and Internet connection and/or may post using an email address that is provided by and incorporates the firm's name.  These types of connections between the posting and the employer can result in the posting being traced to or linked with the employer.  There may be some suggestion that the posting is authorized or sanctioned by the employer. If the posting is about other employees of the firm, the employer may be subject to a complaint under human rights legislation.

When posting to Social Media sites it is wise to be aware of any such policies that may apply to you.  Always assume that what you post may become public.  Courts have begun to consider situations in which postings may be evidence in legal proceedings and therefore subject to compelled disclosure.

For more on such policies and the legal risks involved in Social Media, see Carters Charity Law Bulletin #246.

C. Ian Kyer is counsel at Fasken Martineau and the chair of the board of directors for GRAND. His blog takes readers on a tour of legal issues and perspectives as applied to the fascinating world of graphics, animation and new media in Canada.