Social Media Privacy in the Workplace in Malaysia

Social media giants such as Facebook, Twitter or Instagram have been deemed as part of our day to day lifestyle in our online content consumption. We see many articles, videos or even a simple food post can be a viral sensation albeit its content nature. Many at times, we find many disgruntled employees venting out their anger or frustrations about their workplace or even about their employers. For this topic, we dived into the employees’ right to privacy and the employers’ right to protect their business interest on the use of social media in the workplace.

Now, the million-dollar question is — do employees have the right to privacy in the workplace? Employees want to work in a safe environment without the fear of being constantly monitored by their employers. Consequently, employees expect that their privacy in the workplace is respected. On the other hand, employers have the right to protect their business interests against unwarranted consequences that would damage their business. We’ll look into these two rights in the context of the use of social media in the workplace and the issue of privacy attached to it.

Privacy and the use of social media at the workplace

In an employment contract, there exists an implied term which is known as the duty to maintain mutual trust and confidence. Employees and employers are under a mutual obligation to mutually respect the trust and confidence in the employment relationship and must refrain from acting in any way which will damage this mutual relationship. Proponents of privacy rights have sought to rely on this implied term of mutual trust and confidence to argue that employers are duty bound in law, to respect the privacy of its employees.

However, the proliferation of social media has resulted in the extensive use of such tools and platforms at the workplace. Based on the implied term of mutual trust and confidence, employers are advised not to engage in excessive monitoring of its employees without any justifiable reason. The issue of privacy is more complex in situations where the employees are required to spend a reasonable amount of their time outside the office or perform work from home.

The right to privacy at the workplace comes with certain limitations. Whilst the law recognizes the right to privacy at the workplace, employers still have a legitimate right to either use reasonable means to monitor its employees to prevent the abuse of office facilities or to enforce discipline.

There are several situations where an employer may be justified to intervene with the employee’s privacy at the workplace.

Excessive use of employer’s facilities and equipment to access social media

Where employees are found to have excessively used the company’s equipment to gain access to social media, the employer would be justified to monitor the use of the same.

It is to be borne in mind that the contract of employment between the employer and the employee is built based on the fiduciary relationship of trust and confidence reposed upon the employee. If sufficient evidence of a breach of the fiduciary relationship is found, the employee’s conduct may amount to misconduct. Therefore, if an employee is found to have used the employer’s equipment excessively to gain access to social media, the same constitutes misconduct at the workplace.

In a reported Industrial Court case, Employee A was charged for using the employer’s telephone facilities to make numerous and long personal calls to Employee B. Employee B was charged for being engaged in the personal calls with Employee B. Both employees were dismissed for misuse of the company’s telephone facilities. Having considered that the employees’ conducts would have disrupted their daily duties, the Industrial Court was of the opinion that the employer had acted reasonably in dismissing the employees and held that:

“Both the claimants were employed to work for the company and to be productive. It was never meant that for a substantial period of their office hours they could use that for personal calls and resulting in the reduction of productivity and efficiency in the office.”

If the same line of argument is used against an employee who excessively uses the employer’s property and equipment for social media purposes to the extent that such excessive use affects the performance and productivity at the workplace, then it is clear that the employer would have the right to monitor the usage of such social media at the workplace and take action where necessary.

The misuse of social media which affects the employer’s reputation or business interest

An employer would be justified to take action against an employee where it can be shown that the employee had posted a statement on the social media which affects the reputation of the employer. In the United Kingdom, the Employment Tribunal upheld the dismissal of an employee who posted derogatory comments against employees and customers on her Facebook during working hours.

An employee in another case met with a similar fate after posting negative comments on his employer’s products and services on his Facebook.

In Malaysia, the Industrial Court is likely to adopt the same approach in determining whether the act of an employee in posting comments on Facebook can constitute a just cause and reason for dismissal. In addition, the following is an authoritative text by B. R. Ghaiye that serves as guidance to the Industrial Court:

“… it would be regarded as an act of misconduct for which an employer may punish him by dismissal or otherwise, even if it occurs outside the working hours and outside the factory or place of business of the employer, if the act:

(i) is inconsistent with the fulfilment of the express or implied conditions of service, or

(ii) is directly linked with the general relationship of employer and employee, or

(iii) has a direct connection with the contentment or comfort of the men at work, or

(iv) has a material bearing on the smooth and efficient working of the concern.”

Whist an employee may have a right to post his private comments on Facebook, such comments must not have the effect of affecting the reputation of the employer, even though the posting may only be circulated within the employee’s inner circle of friends. If the reputation or business of the employer is materially affected as a result of an employee’s Facebook posting, the employer would, arguably, be justified in taking action.

Conclusion

Undoubtedly, the employer’s right to protect the business interests and the employee’s right to privacy collide when it comes to the issue of social media privacy at workplace. To answer the question at the beginning of this article — yes, the employee does have the right to privacy. However, this right is not unlimited. The right to privacy must be balanced with the employer’s right to protect its good name, reputation and to ensure productivity of its workforce.