Reviewing Your Employment Contracts to Avoid Post-Termination Defamation on Social Media

Social Media - The Emotional Outlet

With social media taking over every day in-person interactions between people, it not only affects the way we communicate on a personal level, but also leaves a drastic impact on corporate culture too. Instagramming your first day on the job from your new and fancy office is a great way to create a positive image of your current employer, but what about on the last day when you were let go? Probably not the same - no happy faces or sweet words about the organization, but instead endless negative attacks on the manager, the organization and maybe even your ex coworkers. Maybe the hypothetical case described is an extreme, for many people being let go, coping with the shock is so painful that they feel the need to turn to social media as an emotional outlet.

In some places, taking matters too far to defame an employer is actually against the law. A resolution from the Court of Quebec suggests that bad mouthing an employer could lead to fines. As in the case of Ian Ritchie, a former employee of Monseigneur Blanche Residence, who wrote a provocative comment on his Facebook page and was later sued by the owner of the care home he previously worked for. As a resolution to this case, Justice awarded $17,500 to be paid in favor of Monseigneur Blanche Residence.

How to Protect Yourself from Being Badmouthed

For organizations with big names and a stellar reputation, being attacked by ex-employees can turn into a social media and PR nightmare with possible spikes of stock prices, less interest from perspective talents and maybe even discouraged investors.

So how do you escape the PR knock down? This is a tough question as it can be challenging to outline rules in employment contracts given the constitutional right of free speech, but here are 3 suggestions we gathered on what you can include in your contracts: 

• A confidentiality clause that requests employees respect for sharing  sensitive information in their reviews and comments about the company after being employed
• A prohibition clause that completely prohibits the sharing specific information about the company, its operations/ processes and employees
• As a last resort, outlining that any sensitive or personal information about the company could not be shared in any digital means

What to do if the Damage is Already Done

But what if the employee has left the job site, the documents are signed, severance is paid, but one morning you still wake up to read a lot of surprising click-bait articles and rants about you and your company on Facebook or Twitter with thousands of likes and shares? Ouch! (Frankly you should be dialing PageFreezer to capture the evidence while Skyping your lawyer at the same time.) But plugs aside, what else you could do in the moment?

If you indeed have a confidentiality or prohibition clause in your contract, an employee breaking the clause entitles you to seek legal action and start collecting the costs of damages. Below are a few more tips for winning such a case: 

• Collect the evidence. A web and social media archiving provider like PageFreezer will help you with that. It is important that all evidence you present is in a format that meets data authenticity and integrity standards. More specifically, the data has to include metadata and digital signatures that will allow court to see that every piece of evidence is what it says it is, and was not fabricated.
• Invoke the contract that was signed by a former employee with the confidentiality and/or prohibition clauses for further legal proceedings.
• If trademark or copyright infringement occurred, you can use intellectual property law to ask the website authorities to remove the posts. [1]

If you are interested in learning more about meeting court standards with your digital evidence, continue your reading with this blog post: 

Legal Lessons Learned: 5 Times Digital Evidence Was Denied in Court

[1] Siskinds. The Law Firm. "Former Employee Successfully Sued for Defamation for Facebook Posts"