November 12th, 2011
Remember when Apple made TV adverts styling themselves as opponents of Big Brother. Judging by a recent Employment Tribunal finding, that stance is inoperative:
Crisp, who worked in an Apple Store, posted derogatory statements on Facebook about Apple and its products. The posts were made on a "private" Facebook page and outside of working hours. One of his colleagues, who happened to be a Facebook "friend", saw the comments, printed the posts and passed them to the store manager. Crisp was subsequently dismissed for gross misconduct.
The employment tribunal rejected Crisp's claim for unfair dismissal. [...]
Despite having "private" Facebook settings, the tribunal decided that there was nothing to prevent friends from copying and passing on Crisp's comments, so he was unable to rely on the right to privacy contained in Article 8 of the European Convention on Human Rights (covered in the UK by the Human Rights Act 1998). He retained his right to freedom of expression under Article 10, but Apple successfully argued that it was justified and proportionate to limit this right in order to protect its commercial reputation against potentially damaging posts.
I'm not saying that the tribunal's findings are wrong in law: apparently Apple Retail's 'social media policy' emphasised that employees were forbidden from posting unfavourable opinions on the company's products on social media sites, so on the face of it the ex-employee was in breach of this policy.
My problem is threefold:
- With the tribunal, for apparently holding that even though the employee used Facebook's privacy controls to restrict access to his comments the fact that someone could have copied-and-pasted the text of those comments negated his right to privacy.1 By that logic, if he'd been talking to a couple of friends in a pub or in his home, the fact that one of his pals could have surreptitiously recorded his comments using their smartphone renders those comments public too. This is a terribly bad idea.
- With Apple Retail, for trying to gag their employees outside working hours. I don't doubt that their social media policy bans derogatory comments from employees. I just think that a) they shouldn't be trying to control what employees do when they're not at work, and b) they need to distinguish between genuinely public expressions of dissatisfaction and private letting-off of steam.
- With the little shit who ratted on his 'friend'2 to his Apple Store bosses.
- I'd be more well-disposed towards the finding if they'd held that Facebook's policy of frequently expanding the boundaries of what portions of a user's content is publicly available means that a Facebook user couldn't be sure how long private postings would remain private! ↩
- Yet another demonstration of how unsuited that term is to the way social networking actually works. ↩