A social media policy is a vital safeguard for companies battling employee misconduct on the web. Simple guidelines for online behaviour can go a long way in preserving business integrity
Vandana Chatlani reports
Indians have embraced social networking fearlessly. With unbridled enthusiasm, internet-savvy individuals have been quick to recognize the power of online networking, promoting their businesses, advertising their brands, and providing effective customer service.
Dabur, Reliance Mutual Fund, The Hindu and cosmetics company Lakmé are among the many Indian companies that have active Facebook pages, while Tata Sky, Reliance Communications, Vodafone India, Fabindia and NDTV are among those with a presence on Twitter.
The power of social media is undeniable. Cadbury India conjured up happy memories for more than 1,500 Facebook users who hit the “like” button in response to a post that said: “How many of you have a ‘meetha’ [sweet] memory of getting a Cadbury Dairy Milk from your parents for doing something worthy?”
But what should a company do when faced with the wrath of a disgruntled client who savagely rips its product to shreds? How should Lakmé react when a customer says on its Facebook page “Lakme: UR NINE TU FIVE EYELINER SUCKS BIG TIME…!! HATE IT!!”? Or when a Jet Airways passenger says they have had a “seriously pathetic experience,” and threatens to “make sure this experience is in all social forums and corporate sites”?
Does this amount to defamation? According to section 499 of the Indian Penal Code, 1860, defamation can be committed through words spoken or intended to be read, signs or visible representations, which are a published or spoken imputation concerning any person. If the imputation is spoken or published with the intention to harm a person’s reputation, or with the knowledge or reason to believe that the imputation will harm a person’s reputation – this amounts to defamation. The same applies to companies.
However, in the borderless world of cyberspace, where freedom of speech and the right to self-expression is fiercely guarded, whether an individual can be prosecuted for defaming a company because of an online comment is debatable.
“Social media tools present a huge problem for corporations trying to protect their reputations from harmful user-generated content,” says Amit Thukral, a former general counsel at Tata Sky.
While businesses have successfully engaged their clients on social media pages, increasing use of these platforms means they need greater monitoring and staff need training on appropriate conduct and networking etiquette.
Few Indian companies have a structured media policy in place. But there is growing awareness about the need for such a policy, both to educate personnel in charge of a company’s social media pages and to inform employees of the correct conduct in and out of the office.
Internal protocols: Responding to criticism
Last June, Dhaval Valia, a client of Vodafone India, wrote on his Facebook wall: “Finally got Vodafone to admit that across Mumbai they have only 50% cell sites on 3G. Spoke to ceo and cmo. Told them that this is blatant cheating. CMO in typical babu style told me if you aren’t happy with service you have choice to move to another operator. I told [him] i chose to stay with Vodafone and give them grief if I don’t get promised SLAs. Grudgingly he made 2 months 3G plan free worth 2500.”
Valia subsequently posted the phone numbers of the executives with whom he had spoken, which prompted Vodafone to send him a legal warning to stop posting defamatory statements and to remove all his comments about Vodafone from his page.
Sriram Vadlamani, author of the Indianomics column at Asian Correspondent, believes Vodafone handled the incident poorly and that instead of ignoring the comments the company managed to turn the episode into a “mini uprising”.
This and other social media disasters highlight the need for businesses with a large customer service interface to have a policy on how to deal with negative feedback, infringement and other web-generated evils.
Marketing professionals are often saddled with the responsibility of dealing with such complaints. Some companies have clear policies on how to address critical comments, while others react on a case-to-case basis. The responses vary from lightning quick to sluggish and from robotic to creative and personal.
In September 2010, Bollywood director and choreographer Farah Khan complained in a tweet about the lack of Pampers in Mumbai. Within 24 hours, Procter & Gamble had sent Khan a month’s supply of Pamper Active Baby diapers to counter the bad press.
Dragging the company down
Poor conduct from within a company can also pose problems.
Last year, a male employee of an Indian company posted an inappropriate comment on his personal Facebook page. A female co-worker who was offended by the comment filed a harassment complaint with the company, forcing it to invest in resources to look into the matter.
“Strictly speaking, this hasn’t even happened at the company, or at the workplace,” says Sunila Awasthi, a partner at AZB & Partners, who investigated the matter. She adds that “the boundaries are becoming very blurred” but that under Indian law, an employer is obliged to investigate such a complaint.
“There are much more serious issues [for the company] than someone posting ‘You look hot’ on someone else’s Facebook page,” Awasthi says.
Social media guidelines are frequently drawn up as a collaborative exercise, with input from a company’s in-house legal and risk compliance teams, its marketing division, corporate communications department, human resources department, senior executives and other stakeholders. External counsel is engaged from time to time to review the final document, but rarely play a major role in the drafting process.
Dos and don’ts
Companies are increasingly keen to mitigate the risks associated with the use of social media by their employees, and although it may be impossible to completely eliminate such risks, they may want to issue guidelines to prevent misconduct.
Monitoring and tracking personal social media pages is tricky, but a social media policy may help to protect a company and reduce its liability in situations where employees have conducted themselves inappropriately.
Some companies have gone to great lengths to detail what is permissible. In the UK, a social media guidance note for employees of BBC News states: “You shouldn’t state your political preferences or say anything that compromises your impartiality. Don’t sound off about things in an openly partisan way. Don’t be seduced by the informality of social media into bringing the BBC into disrepute. Don’t criticise your colleagues. Don’t reveal confidential BBC information. Don’t surreptitiously sanitise Wikipedia pages about the BBC.”
The broadcasting company includes rules about blogging and interacting on social media platforms both as a BBC professional and in a personal capacity. It also instructs employees who carry out activity for “core news, programmes or genres carried out officially in the name of BBC News,” that “whatever is published – on Twitter, Facebook or anywhere else – must have a second pair of eyes prior to publication”.
Experts suggest integrating social media policies with an organization’s other policies. Anyone who identifies themselves as an employee of a company “becomes a representative of that company, and everything they post has the potential to reflect on the company and its image,” says Thukral. “The policy should impress upon them that they take on the responsibility for representing the company in a professional manner. Employees are not to reference any clients, customers, or partners without obtaining your express permission to do so.”
Coca-Cola is a prime example of a company that integrates its social media policy with its policies in other areas. Recognizing the difference between employees speaking on its behalf and speaking “about” the company, Coca-Cola has set out five principles for “personal or unofficial online activities” where employees may refer to it.
Woven into these softer guidelines are references to other Coca-Cola policies. The first principle states that policies such as the company’s information protection policy and insider trading policy govern associates’ behaviour with respect to the disclosure of information and that “these policies are applicable to your personal activities online”.
Coca-Cola’s online social media policy also warns employees about the repercussions of posting something potentially damaging. It says: “Anything you post that can potentially tarnish the Company’s image will ultimately be your responsibility.”
In addition, Coca-Cola is strict about who responds to criticism. “Unless you are a certified online spokesperson, avoid the temptation to react yourself,” the document says, encouraging employees to pass offending material along to the company’s official spokespersons.
A social media policy may prohibit employees from posting some kinds of disparaging statements.
In 2010 an employee of Vodafone UK made an obscene and offensive remark about sexual preferences using the company’s Twitter account. Hundreds of Vodafone customers contacted the company to find out whether its account had been hacked. The bad publicity forced Vodafone to take disciplinary action and fire the employee concerned.
A similar case occurred in 2009 when Virgin Atlantic dismissed 13 employees for describing passengers as “chavs” (a derogatory word used to describe certain youths in the UK) on Facebook and suggesting that the company’s planes were full of cockroaches.
“The key here is to make the employees understand that on such sites the employee is being identified as a representative of the company and therefore offensive comments on such sites may be prohibited,” says Prashant Kumar, an associate at J Sagar Associates.
Simple, practical and accessible
Cathay Pacific is a company that has had to think creatively to get through to its “generation Y” employees. The airline has in the past recruited up to 1,000 new cabin crew per year according to Steve Tunstall, head of corporate risk management in Hong Kong.
“Quite a lot of that generation don’t read their emails because email is for old people,” says Tunstall. “So we need to find different ways to engage with them.”
Tunstall says that the airline’s social media policy is a work in progress, which will continue to be adapted because of the fast-changing, dynamic nature of social media.
Cathay Pacific has designed an etiquette document to educate employees on what they are allowed to do. “We felt very strongly that the focus should be on the positive versus the negative,” says Tunstall. “Of course, you also have to have a formal policy that outlines the consequences for misuse.”
The policy document draws on the airline’s code of conduct documents, and offers guidance such as “don’t use discriminatory language”, “don’t be critical of other people”, and “don’t share the company’s IP to harm the company”.
“The etiquette document is not enforceable and there are no repercussions,” he says. “All it says is, ‘we want you to behave like this’. If you’d like to do the right thing, this is what we think the right thing is. So we’re just advising our staff to be truthful, kind, don’t say things about others that you wouldn’t want others to say about you, and don’t be aggressive. Be proud about who you work for, but make sure you stay in your lane. Don’t start saying things on behalf of the company.”
German automotive company Daimler has instituted a similar policy, with 10 tips that are intended to be soft guidelines rather than strict legal policy. The company has a blog, Twitter and YouTube accounts, and a Facebook page. Daimler allows its employees to use social media during work hours as long as it is not disruptive and permission from senior staff has been obtained.
“We call it ‘guidelines’ rather than a policy because it’s more like showing employees the direction in which they can go,” says Uwe Knaus, manager of corporate blogging and social media strategy communications at Daimler.
“Daimler’s contract of employment, integrity code and information policy provide a binding framework for ensuring compliance with applicable legal regulations,” Knaus says.
“In the past, only the communications department could speak to the public. Now employees have the opportunity to share photos, videos, opinions or even reviews and report on their experiences and this is where our social media guidelines come into play.”
Daimler’s social media representatives are expected to identify themselves as such. They are encouraged where necessary to add a disclaimer to their comments, stating that they are employees of the company but that the opinion expressed is personal. Employees are also instructed to “observe the law”.
The company’s social media guidelines tell staff not to publish “slanderous, libellous or otherwise illegal content”. They also emphasize the dangers of IP infringement, stating “do not publish content on the internet without the relevant copyright information; comply with copyrights and respect the right of the individual regarding the use of their own image.”
Arun Nair, a digital marketing expert and blogger, stresses the importance of inclusivity in any social media policy. “Ensure that the process is an enterprise-wide activity and not restricted to the traditional custodians of social media (marketing communications, customer service),” he writes on his blog, The Indian Eye. “This gives legitimacy and instant acceptance to the policy and there is a sense of shared ownership.”
Nair also underscores the need for simplicity and clarity. “Keep the language simple to understand, clear and free of ambiguities. Keep the style of the document conversational, avoid ‘legalese’ as much as possible and strive to keep the policy crisp and to the point.”
Avenues of recourse
When implementing a social media policy in India, companies must consider if enforcement is realistically possible. Seeking damages for violations in India may be impractical since Indian courts rarely grant them.
“When drawing up a policy, companies should look at case law in India, look at what the local and federal statutes may provide, and use policies that are enforceable in nature rather than those that look good on paper,” says Manishi Pathak, a senior partner at Kochhar & Co.
Lawyers say they have received queries about the legal consequences of using information available on social media sites for recruitment or termination purposes. “Many employers have come to us and asked whether this would be in violation of any privacy laws,” says Pathak. “If it is in the public domain and everyone has access to it, then it would not be a violation. But if it is in a confined space – for example, on Facebook, where you can restrict who has access to your page – and an employer tries to access these pages, an employee can claim invasion of privacy.”
Pathak adds however, that this issue is still being discussed and debated, and that there is no case law on this.
Proving an invasion of privacy may be difficult. “If you look at it practically, most employers do not disclose reasons for not selecting a particular candidate,” notes Pathak. “Given that scenario, it’s quite unlikely that an employee will have a good chance of filing a case.”
If an employee defames their employer, this would qualify as misconduct. Under Indian employment laws, an employer can take action against an employee for this kind of conduct. Companies can also insert clauses in employment contracts or non-disclosure agreements stating that an employee is not free to discuss the company, employer, peers, seniors or the company’s business on social media.
“An employer is well within their rights to put an obligation like that on their employees,” says Awasthi at AZB & Partners. “The more sensitive a company is about their trade secrets, the way they do business or their brands and image, the more stringent they would be about such clauses.”
Straitjackets and freedom
While employers can issue guidelines with respect to employee conduct, they can only control their employees’ online behaviour to a limited extent. Employees of one company are also consumers of products of other companies and comments by employees about products and services with which they are unsatisfied cannot be curbed by employment contracts and media policies, explains Sajai Singh, a partner at J Sagar Associates.
Singh adds that general comments on social networking sites, if made after office hours and without the use of office equipment, are personal remarks and may therefore be outside a company’s control. However, he notes that “comments on a site on which employees may be clearly identified as related to the company may be controlled”.
It is crucial for employers to ensure that rules and regulations are not too rigid. “You need a policy that protects the interests of the organization but also one that is employee friendly and not a straitjacket,” says Nair.
“You may have someone who is a popular blogger who’s done something to make themselves a star on social media, but that’s in their social capacity,” he says. There’s no reason to stop such an employee from blogging. Instead, Nair says, a company should prepare and train such a person to respond appropriately if questioned about the company or their role in it.