As published in NZLawyer magazine
I must confess to not really being up with the latest in technological advances. In fact, I don't mind admitting I could legitimately be described as something of a late adopter. By way of example, Shazam was released in the UK in 2002 and I picked it up in circa 2012 (Shazam is a mobile phone app which allows you to identify songs playing on the radio). I don't 'Keep up with the Kardashians', and I prefer real life to reality TV. So, with that back-story, you probably won't be all that surprised that I'm not a regular tweeter. But, there are plenty of others who are, and with that, plenty of potential employment law issues arising.
The public v private divide
One of the attractions of Twitter for those that tweet is its immediacy. From the privacy and anonymity of your own lounge room, you can share your views with anyone who wants to follow you, and many do. Wikipedia tells me that as of 2012 there were over 500 million registered Twitter users sending 340 million tweets per day. But with immediacy there appears to come a lack of self censorship. It seems all too easy to fire off 140 characters into the Twitter sphere - and think of the consequences later.
The Edge radio DJ Dominic Harvey recently got into trouble tweeting prolifically during an episode of the X Factor. The tweet that caused complaint, and led Harvey to apologise, related to a contestant called Gracie who Harvey referenced to a character of the same name from the movie Once Were Warriors. Harvey's tweet prompted, what has been referred to as, a 'barrage of complaints', including many calling for sponsors of the radio show that employs Harvey to pull out of advertising on the station. And therein lies the rub – on one hand, Harvey, a morning show DJ (from 6am until 10am Monday- Friday) was sitting at home on a Sunday night, clearly in his own time, tweeting while watching TV. But, is he tweeting as Dominic Harvey private individual or is he always Dominic Harvey, Edge Radio, DJ? Put another way, would The Edge be able to discipline Harvey for his tweets if it found them to be inappropriate?
If you're someone with an even higher profile (no offence intended to Dominic Harvey) like, for example, John Campbell (whose name is synonymous with his show Campbell Live) or Richie McCaw or Dan Carter (I'm sure I don't need to tell you they're All Blacks) – is there even such a thing as your own time? If you tweet, are you always unavoidably linked to your employer, be it TVNZ or the NZRU? How does that fit with such human rights concepts as freedom of association, and freedom of speech? I'm raising a lot of questions here - that don't necessarily have simple answers.
Harvey of course isn't the first 'celebrity' to be caught out by Twitter. Sky TV news reporter Eric Young was rumoured to be 'in trouble' after an 'expletive-laden tweet' calling for Belarusian shotputter Nadzeya Ostapchuk to hand over her gold medal (to NZ Olympian Valerie Adams). The tweet was quickly removed but the New Zealand Herald subsequently reported that Young's Sky TV bosses were 'unimpressed' and quoted Sky TV's Head of Corporate Communications as stating that it was "against Sky TV's policies to use language like that". As it was a private employment matter, it isn't known whether Young was disciplined for the tweet, but he doesn't appear to have been removed from presenting duties or publicly sanctioned in any way.
Harvey and Young are two examples of people who are in the public eye in day-to-day life. Having a Twitter following and tweeting regularly (and perhaps even controversially) is arguably part of the role of media personalities like Harvey and Young in this day and age. Which then raises the question – is any publicity good publicity? Would it be a defence for Harvey, for example, to say that part of his role is to be controversial and to get people talking? To my mind, it depends on the specific facts (which of course isn't unusual in employment law). If the tweet is objectively unreasonable, in that it contains language that any reasonable person would find offensive, it will probably cross a line and not be acceptable to an employer. If an employee can argue that it is part of their role to develop a profile, and that part of that involved the creation of controversy or talk, that might give the employee mitigating circumstances.
What these two examples also illustrate is that there is likely to be a different threshold for those in the public eye and those outside of it. For the vast majority of people, if you are a Twitter user and send a tweet, your friends, family, and anyone else who is following you will receive it. For most, those followers either won't know who your employer is or link it with your employment in any way. But, if you have a profile and part of your profile includes your employment, your employer may be entitled to be concerned if your tweet is inappropriate. Certainly if your profile references your employment in any way, your employer will be clearly linked and therefore may be entitled to express concern and, potentially, to discipline.
Once again, my advice to employers is that with Twitter and other forms of social media developing at a rapid pace, having a clear policy setting out the expectations in regard to Twitter use is becoming a must have.
I think it needs to be clear whether tweeting, or more generally creating a profile and/or creating controversy, is part of an employee's role. On one hand, if you are a public figure by virtue of your employment (such as a journalist), you arguably have a heightened obligation to your employer not to act in such a way as to bring that employer into disrepute. Indeed, there is something to be said for the argument that a reporter's role is to report the news and not to make the news and therefore, while tweeting may be something the individual wants to do, it isn't a requirement of the role. On the other hand people make choices about what channel to watch or what station to listen to for a multitude of reasons. If the news being reported is ostensibly the same on all channels, there may be some scope for an organisation like TVNZ or Mediaworks to encourage its journalists to develop public profiles. And of course with that comes the risk of controversy. Whether it is simply a case of'you can't please all the people all the time', or whether what is being said or done is objectively unreasonable, will depend on the facts.
Of course, if you don't want your tweeps (Twitter peeps – people who follow others on Twitter) to take offence, the simplest answer is not to post anything inflammatory or controversial. If that isn't the way you roll, you may have to accept that your tweets may ruffle a few feathers and that could have consequences, including employment law consequences.