Social Media – how private is your personal data

Nowadays most people have at least one social media account. Whether it’s Facebook or TikTok, X (formerly known as Twitter) or LinkedIn, most adults have an online presence. This, of course, means that they have personal data which is being processed and may be shared with the general public. What you may believe is shared in private online spaces can have long lasting consequences and emphasises the importance of data protection in personal lives as well as the business sphere.  There are a growing number of employment cases where employers have dismissed employees for their social media content, in particular the impact this has had on the employer’s reputation.

What sort of data do you publish on social media?

One post can involve sharing a lot of personal data about the poster without meaning to. A post of a simple picture may provide:

• Name – platforms such as Facebook identify users based on their names, but a username on Instagram or X may also indicate the name of the poster.
• Location – tagging the location of your post is an obvious way of sharing your current location with your followers. However, even if you opt not to specify where the picture was taken, the picture may disclose an identifiable location which internet sleuths can use to pinpoint your location.
• Interests – posting your interests online may seem harmless and be exactly the intended purpose for social media, but they can also allow you to learn a lot about an individual, leading to targeted ads and could potentially be used as a basis for scam activity.  Your views and posts may also get you into difficulties at work.

How private is your social media?

Some social media platforms limit who can see your content to “friends only” but this doesn’t mean that those friends cannot then share the content themselves.

In an employment context, you may add work colleagues to your friend list. Alternatively, you may publish something which offends one of your friends who report to your employer what you have said. Multiple cases have found their way to the Employment Tribunal where someone has been sharing posts online and as a result, have been dismissed from their job. Once it’s online it’s out there forever…

In Creighton v Together Housing Association Ltd, an employee who had been with the company since 1987, was dismissed in 2015. Following a grievance made by a colleague, it was found that the employee had been using his open Twitter account to make derogatory comments about his colleagues and employer. These had been made 2 or 3 years before discovery. Despite this, and his 30 year service, he was dismissed for gross misconduct as a result of his comments. The tribunal held this was a reasonable response to the behaviour as the social media policy stressed that “defaming the organisation or damaging its reputation by use of social media” was an example of gross misconduct and his comments, being on an open account where anyone could see, were capable of damaging the organisation’s reputation.

Some social media platforms limit who can see your content to “friends only” but this doesn’t mean that those friends cannot then share the content themselves.

But what if it’s said on a private account?

Even if your account is set to private such as a Facebook account, you may find yourself in trouble with your employer.

A recent publicised case in which social media has got an employee into trouble is Higgs v Farmor’s School. This case has made its way all the way to the Court of Appeal and has generated a lot of discourse as to how comments made on social media can impact your employment. Here, one of Ms Higgs’ Facebook friends, emailed the school she worked at expressing concerns surrounding homophobic and prejudiced views displayed in posts Ms Higgs had commented on. Whilst on the facts, the Court of Appeal held it was unreasonable to dismiss Ms Higgs (as they believed she would not let these views affect her role and that there was no evidence the posts had caused reputational damage to the school), many commentators have noted that whilst dismissal may have been disproportionate in the particular circumstances, it’s clear that each case may turn on its facts and if an employer has sufficient social media policies and training in place, then they could justify this disciplinary outcome.

In Gibbins v British Council, an employee made a comment expressing her dissatisfaction with the royal family on a derogatory post about Prince George (which she believed was only visible to her 150 friends). One of her Facebook friends informed the Sun, who published it, misquoting her whilst identifying she was an employee of the British Council. She was dismissed for her “reckless lack of judgment” in commenting on the post. This dismissal was held to be fair as whilst she was entitled to republican beliefs, making the comment on a controversial post regarding a small child was the issue as it was “inexcusable for someone in her senior position”. Given the comment was published and caused a media storm which required a public apology to Buckingham Palace, it was reasonable for the British Council to dismiss her. It was noted that even if she believed it would only be seen by 150 people, “150 people alone are a lot of people”.

This demonstrates that even if you have your privacy settings high, your comments may still end up outside your bubble.

Right to Privacy?

You may think that just because it was shared outside of a work context that it has no bearing on your employment due to your right to privacy and personal beliefs but these cases demonstrate that these comments can impact your employment and that it may be reasonable for an employer to dismiss in such circumstances, particularly where the content may damage the employer’s reputation.  It’s an important reminder that when posting online you are releasing your statements for everyone to see, even if you don’t intend for everyone to be able to view these.

How can organisations deal with social media?

Organisations may have in place a Social Media Policy setting out the standards they expect from employees and it is a good idea for these to make clear that conduct outside of work can lead to disciplinary action in the workplace.

We have a social media policy template available on Employment Buddy which can be found here to help safeguard your business in relation to the use of social media by employees If you would like a tailored policy, some further advice regarding implementing these policies, or general advice on the impact of social media on employment then please get in touch with our data protection or employment teams who can provide you with expert advice on how to proceed.