Monday, October 23, 2017
In recent weeks, a twitter account belonging to a supposed “Secret RTE Producer” has attracted a great deal of attention. The account appears to have been created in early September and makes a number of unflattering allegations about the broadcaster.
Unsurprisingly, RTÉ has reacted adversely and is apparently attempting to discover the poster’s identity on the basis that the tweets bring the organisation into disrepute. It’s hardly surprising that RTÉ is concerned. Any organisation depicted in this manner on social media would react the same way. The situation is exacerbated by the fact that the publisher is supposedly an employee (although, as a number of commentators have pointed out, there is no way to know this for sure).
Either way, the story is yet another example of how challenging it can be for businesses to protect their reputation in the age of social media. If the secret RTE producer isn’t actually an employee, RTÉ’s remedies are straightforward. If it can identify the publisher, it could potentially sue for defamation, or it could seek to have the account frozen via the E-Commerce Directive (within the EU), or otherwise.
However, if the secret RTE producer is an employee, then the broadcaster has other options existing exclusively within the employment relationship. It is well established by now that issues arising from employees’ use of social media can be the subject of disciplinary action in the same way as any other workplace breach. The courts and employment tribunals have had to deal with these issues repeatedly over the last 15 years or so.
It’s now generally accepted, for example, that egregious conduct on social media can justify a decision to dismiss. The challenge for employers, of course, is finding the right balance. If you are contemplating steps such as dismissing an employee for abuse of social media, it’s prudent to tread carefully.
One clear principle which seems to be emerging is that the mere fact that an employer is angry, upset or apprehensive isn’t necessarily enough. The case law to date seems to require an additional factor- whether the employer’s reputations has actually been damaged. A crystal-clear example is a case in 2016 in which a Wagamama employee filmed himself snorting cocaine in a bathroom wearing a t-shirt with his employer’s name emblazoned across the front and posted it on a social media platform. That’s probably the high watermark, or close to it, of stupid things that employees can do to embarrass their employers.
In another decision in 2016, TCD announced that they were going to convene an enquiry into certain Facebook posts published by a professor in the college. He apparently used his account to publish comments criticising students’ exam answers and may have actually included extracts from those answers in his postings.
In the case of the secret RTE producer, it’s reasonable to conclude that there is, at an absolute minimum, the potential for RTÉ’s reputation to be damaged. The secret RTE producer doesn’t hold back and, upon reviewing the entirety of his tweets to date, the impression given of RTÉ is negative in the extreme.
However, it differs to the majority of the existing cases of abuse of social media in that it doesn’t feature the employee themselves in a starring role unlike the majority of other cases in which social media postings have come before the courts/tribunals. Rather, the employee is sharing in public his thoughts about the manner in which his employer operates.
If the secret RTE producer were to be discovered and subjected to some form of disciplinary investigation/procedure, the most dangerous territory for the employee would relate to confidentiality. It is highly likely that the secret RTE producer has a written contract obliging him to keep information learned in the course of his employment confidential. Assuming this is the case, it’s difficult to see what they are doing as anything other than an egregious breach of confidentiality.
One possible argument – that the secret RTE producer is performing some kind of public service – isn’t particularly strong either. They might conceivably try to argue that he is doing us all a favour by shining a light on an organisation that is partly publicly funded. But if they are subject to a confidentiality restriction, good motives are neither here nor there. While whistleblowers in Ireland have protected status since the Protected Disclosures Act 2014 came into force, it’s most unlikely that the secret RTE producer can avail of those protections.
The Act does allow for disseminating this kind of material outside the workplace but, crucially, only in very narrow circumstances and it’s unlikely that the box has been ticked in this case. Put simply, if the secret RTE producer has concerns about the way their employer operates, their remedy is to draw alleged shortcomings to RTÉ’s attention, not broadcast them to all and sundry.
The secret RTE producer suggests on his Twitter feed that he is enjoying support from members of Dáil Éireann and co-employees, among others. Even if this is true, it’s not going to afford them much protection if RTÉ discover who they are and take action within the employment relationship.