‘Words are just words’, right? Well, not for business owners and C—Level executives. Take Elon Musk, for example, whose words have buried him in an unfavourable position, and not for the first time. Most recently, Tesla’s CEO was caught under the spotlight after calling a British diver - Vern Unsworth, who had rescued a youth Thai football team earlier this year – a paedophile and child rapist (amongst other accusations which were backed up with no evidence). This resulted in Unsworth suing the tech billionaire for defamation, in hopes for compensation and an injunction against Musk for making further allegations.
From an employment law perspective, this [Elon Musk] case highlights the real dangers of a company or individuals using social media without having a structured employment policy related to social media usage in place.
As Katherine Maxwell, Partner and Head of Employment at Moore Blatch explains: “It has been reported that Elon Musk is being sued for £57,000 and I doubt whether this will cause much financial strain to either the individual or his company. But these damages are, for the company, the least of the issue. It is the time and cost surrounding any social media faux pas that can cause the most aggravation. The furore surrounding Elon Musk’s tweets only emphasise the importance of employers having a formal social media policy in place.”
It may sound like an episode of Suits, however poorly thought out tweets and announcements can have dire consequences; as previously discussed, poor PR management can cause detriment to a business, and in Musk’s case, Tesla, has and will, continue to feel the wrath. Even prior to the lawsuit being announced, Musk’s controversial tweets addressed to Unsworth had open doors to Tesla 3% fall in shares[1].
And this is not the first time. Spats with the all-important investors which keep his company alive, - by going further than simply avoiding unfavourable questions, and instead responding in an unpleasant manner by telling analysts their ‘boring, bonehead’ questions were ‘killing him’, - has caused Tesla’s stock to rise and fall.[2]
“From an employment law perspective, this [Elon Musk] case highlights the real dangers of a company or individuals using social media without having a structured employment policy related to social media usage in place”, expands Katherine.
“We are all used to the ‘all views are my own’ disclaimer. But such disclaimers cannot be relied upon if there is a possibility that the context of a tweet or other social media mention can be connected back to an employer. For senior individuals within a company who are often seen as commenting on behalf a business – whether via a personal or professional account - it should be assumed that any post could almost always be viewed as a corporate statement. The reputational damage that can result from an ill-advised tweet can be immense. At the most extreme, and as we have seen with Elon Musk, defamatory comments expose you to claims for libel.”
Avoiding these types of lawsuits is very straightforward – do not make unfounded and defamatory allegations on social media platforms.
Being an unconventional CEO has clearly allowed Musk and his company to flourish, but with Tesla’s financial stability already being questioned when segregated from aforementioned issues, we question if business owners should be liable for their words, in particular if it is outside and unrelated to their work, i.e., should Musk, as a CEO, be held liable for accusing a diver a rapist?
We have touched on this slightly before, in a different matter. A few months ago, I explored whether you can be fired for having unconventional standpoints at work. We concluded:
“…what is certain is that there is now a chance you could get fired for your strong [political] views. If you would like to keep your job, perhaps keep strong, ‘controversial’ (sexist, racist, or anything demeaning and derogatory) opinions to yourself in the workplace.”
And as Rhiannon Cambrook-Woods, Managing Director of Zest Recruitment and Consultancy and Solicitor, expands, “Tweeting is seemingly an innocent way to pass the time and keep up with your network. With 74% of people using it as their primary news source, each tweet that is posted has the potential to be seen not just within a business’s immediate network, but by hundreds, thousands or even millions of people. The need to mind one’s p’s and q’s has never been greater.”
But what about outside of the workplace? Could you be liable if you called someone a child rapist outside of work? Well, the answer depends.
“There is a fine line between appropriate and inappropriate opinions that could be damaging to your business as a multiplier. Indeed, while many business owners seek refuge in the ‘these views are my own’ disclaimer, unbeknown to most, this holds no legal sway at all”, explains Rhiannon.
Business owners should be extremely wary of what they tweet, whether recent or 10 years prior. Take note: the world is your audience.
In fact, one of the top ten legal risks[3] related to Twitter especially, but also stretches out to other forms of discourse, references defamatory law. In England, as written by the Guardian, the law of libel states that it is an offence to communicate defamatory remarks, in particular when these remarks are permanent; Twitter and other social media forums, have a form of permanence, and so one can take legal action when a defamatory statement that has breached the law of libel and exposes the individual to contempt, impacting their daily lives and possibly causing detriment to their business.
We speak to Steve Kuncewicz, an expert in social media law at BLM, who sheds more light into the matter.
“Avoiding these types of lawsuits is very straightforward – do not make unfounded and defamatory allegations on social media platforms. This is applicable to not only business owners, but also to individuals or employees, whose allegations can easily be disseminated, and the harm done to reputation inferred through any responses to them from third parties.
“When poverty campaigner Jack Monroe won a libel case against Katie Hopkins after a series of defamatory Twitter posts, not only did it have a significant impact on Hopkins’ finances, the case and Hopkins continued controversial tweeting, has since led to the loss of regular column and media appearances and ultimately her considering insolvency.”
Your employer must be able to show a potential risk to their reputation – but it doesn’t usually seem to matter that the potential threat never actually materialised
So, you can find yourself in trouble if you post menacing statements on social media, and this is more or less extended to the US. Where the 1st Amendment may protect you in some instances, especially when differentiating ‘threat’ from ‘expression’, legal action can take place if serious accusations and threats are made.
As Steve states: “Those with a large number of online followers are more open to public scrutiny on controversial posts, and the sheer extent of their following could lead to higher wards in damages as a consequence of what they say. Social media users, and especially those with engaged followings, should take caution over what is said and whether it could ultimately be attributed to their employer.”
How does this extend to the workplace? Can your employer fire you and are you liable for what you tweet? Well, yes, more so if it impacts the business’ reputation. As worksmart.org states[4]:
“Your employer must be able to show a potential risk to their reputation – but it doesn’t usually seem to matter that the potential threat never actually materialised (in other words that in reality, the posting caused no damage to the employer’s reputation). Even so, evidence that hardly anyone saw your posting can be helpful.”
The US is slightly more complicated regarding this matter, due to employment laws differing in each state; nonetheless, when your posts have a negative impact on your employer, they have a right to fire you[5].
Nevertheless, it often does not matter if you are in or out of work: “Whether comments are made in the office or outside of it is largely irrelevant; your employer is within its rights to take umbrage to potentially harmful posts if it can have a foreseeable effect upon your reputation and its response is reasonable to protect its interests”, says Steve.
With Musk being the CEO of his own company, things become a little hazy, however, no matter how far up the food chain you may be, being a risk to the company can still see you waving goodbye to your position.
As Rhiannon summarises: “Chances are if you write something unfavourable which gets you into hot water at work or online, your company will – and should - be accountable. There is continuous evidence of this in the media, with huge corporations such as Disney having to make high-profile firings due to inappropriate tweets.
Business owners should be extremely wary of what they tweet, whether recent or 10 years prior. Take note: the world is your audience.”
[1] https://www.cnbc.com/2018/07/16/british-diver-mulls-legal-action-after-elon-musk-calls-him-pedo-guy.html
[2] https://www.wired.com/story/elon-musk-tesla-model-3-earnings-call/
[3] https://www.theguardian.com/law/2012/aug/10/twitter-legal-risks
[4] https://worksmart.org.uk/work-rights/discipline-and-policies/blogging-and-work/if-i-am-sacked-blogging-or-tweeting-what-are
[5] http://home.lawsoup.org/legal-guides/laws-by-role/employee/
