Many employers are interested in controlling or limiting what their employees post on social media. But, as the Israel Folau case demonstrates, a growing number of employees are resisting these limits, especially when they limit out-of-work conduct or relate to the expression of religious or political opinions. 
 
Folau lost a multi-million dollar contract with Rugby Australia over an Instagram post seeming to condemn homosexuals to hell. He viewed it as a religious obligation. Others saw it as discrimination and a breach of contract.  
 
It’s a tricky problem. Finding a workable solution requires defining what a business’s legitimate interests are and seeking the least restrictive ways of protecting them. It also involves communicating limits on social media behaviour in ways that are clear and unambiguous. Finally, those rules should be contractually enforceable and compliance should be consistently monitored. 
  
Define your interests 
 
Court rulings have traditionally favoured employers’ efforts to enforce behavioural policies and codes, including the regulation of employees’ private activities. In Australia, there is no general right to privacy when it comes to social media. Nonetheless, many younger workers may feel that there should be, so a workable social media policy may involve restricting social media behaviour less than the law might actually permit. 
 
Employers certainly have a right to protect their brand. They have a responsibility to protect employees from harassment, abuse and discrimination. They have the right to expect employees to spend the workday on employment-related tasks. 
 
The task of identifying legitimate interests and balancing rights and responsibilities on both sides of the employment relationship will be different for many businesses, but a reasonable place to begin the inquiry would be with a review of the provisions of the Fair Work Act. 
  
Put it in writing and educate employees 
 
Your social media policy should be as explicit as possible. A rule requiring employees to be respectful of one another, for example, may be too vague to be enforceable. Put it in writing, preferably in a widely distributed document like an employee handbook. Consider having employees sign a statement that they have received and read the handbook and that they agree to be contractually bound by its provisions. 
 
Conduct periodic training sessions for employees on the application of the rules. This is also an excellent way to get employee feedback about the restrictions or problems that may be arising under them. 
  
Enforce your social media limits consistently 
 
Rules about social media use that are not enforced consistently are, of course, no rules at all and will be ignored. If there is no method of monitoring compliance, it may be that the limitation is not necessary to protect an important interest or is not the least restrictive way of doing so. 
 
Finally, expect challenges. Expectations of privacy in social media communications are rapidly changing, and what one group of employees finds reasonable may seem unreasonable to another group at another time.   

Related reading:

Ensuring branded content doesn’t harm your business

Are influencers more effective than advertising on social media?

How social media turned a garage business into a global brand