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26 Mar 2019

Where is your freedom of speech when it comes to social media?

Managing Director and Special Counsel, Simon Creek, joins Channel 9’s Tracey Vo to discuss what some of your rights are when it comes to social media and work. Watch the clip below for more on what Simon Creek had to say.



Tracey Vo: [00:00:00] Well there is a freedom of speech battle brewing in our High Court. It revolves around a public servant being sacked from her border protection job for thousands of tweets over several years. Highly critical of the then government minister policies and her own department. All of them except one were made in her own time under an alias using her own phone. Simon Creek from HHG legal is here with me now. Good afternoon Simon. What will each party have to prove in the High Court.

Simon Creek: [00:00:29] Good afternoon. This is a huge issue for the whole of the country to be watching whether you are an employee or an employer private sector or public sector. And in this particular case the employer the public sector has to prove that not withstanding the alias and any other protection the employee tried to employ. They have literally gone well beyond their fiduciary duty to their employer and that they have in fact in this case damaged the reputation of Australia. All right.

Tracey Vo: [00:00:58] So So legally what are the different ways the social media posts can get you into trouble at work.

Simon Creek: [00:01:04] I think heaps of people think will have the opinion the view that if they write in their handle or their bio These are my views and not the views of my employer that they’re safe. And it’s just not true. Again as this individual is finding using an alias is not true because it’s so easy to find out who’s behind them. The battle between freedom of speech and the ability or the need to protect your employer is one we’re going to see a lot more of.

Tracey Vo: [00:01:34] What about the fact that you do it outside of work hours as well.

Simon Creek: [00:01:38] Unfortunately for Take for example here this individual a public sector employee the relevant act says they have to protect the reputation of their employer at all times. And so that does include after hours work. And I would suggest that that’s going to apply to the private sector to a very large extent as well.

Tracey Vo: [00:02:00] So is there any kind of clear indication from employers that they have to you know instill into their employees about social media use and their behaviors on their look training is something every employer should be doing and there’s no doubt that businesses are not doing enough of it.

Simon Creek: [00:02:17] Clearly here the government perhaps hasn’t been doing enough of it but the onus still remains on the employee to know these things of their own volition. And so it won’t be an excuse to say I wasn’t trained properly.

Tracey Vo: [00:02:31] Not even if like the employee did actually say look you can’t do X Y and Z Well if if that training is in place and they then breach it absolutely.

Simon Creek: [00:02:41] Grounds for at least discipline possibly dismissal but if there’s not enough training and the employee just doesn’t know what where the line is then it’s not an excuse for them to say I didn’t know you didn’t tell me. Therefore I made a genuine mistake. If the employer wants to get bullish about it they can.

Tracey Vo: [00:03:00] All right. It is very dangerous social media sometimes and I do agree that more training needs to be done. All right Simon Creek thank you so much for your time.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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