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Avoiding social media storms

24 March 2020 | Sonya Black, LLB (Hons), B.Com, Special Counsel – Employment Law, Avant Law, QLD

A practice nurse proposed on her personal Facebook page that people drink Miracle Mineral Solutions (MMS) to ward off COVID-19. Her profile noted the practice where she works and the post has been shared multiple times. Patients have started phoning the practice asking if they should use MMS and the media is requesting a statement.

Managing a scenario like this one can be time-consuming and challenging. Disciplining the staff member involved can compound the problem if this leads to an unfair dismissal or other claim against the practice.

To avoid being blindsided by a social media storm, the best advice is to take steps to avoid the problem in the first place by developing policies and offer training, so staff understand:

  • the appropriate use of the practice’s social media accounts
  • expectations on staff using social media – on behalf of the practice and in their personal capacity
  • consequences of breaching these policies.

Taking these steps can also put the practice in a better position to defend disciplinary action if necessary.

Setting clear expectations

While policies may be worded in general terms, they should address issues such as:

1. Breaches of professional obligations

Staff who are healthcare practitioners will be covered by the relevant professional standards which regulate issues such as:

  • behaving professionally and courteously to colleagues
  • providing culturally safe and respectful care
  • promoting principles of public health
  • advertising

Guidance on the use of social media from the Australian Health Practitioner Regulation Agency (Ahpra) outlines the kinds of statements the regulator considers may breach professional obligations. These include posting disparaging comments about a colleague, patients or a group of patients. Posting health-related information that contradicts current clinical evidence and public health programs or makes false claims about the effectiveness of a treatment is likely to be in breach of the National Law. Using testimonials on social media platforms will generally breach Ahpra’s advertising guidelines.

Practice policies should remind staff of their obligations to maintain professional boundaries. Providing guidance to help staff navigate issues such as how to respond to friend requests can be very helpful, as this can be complicated, particularly in small communities.

2. Breach of confidentiality and privacy

Practices can find themselves in trouble over staff breaches of confidentiality or privacy online. Cases have included staff commenting about a patient, posting images online and posting photos that inadvertently disclose patient information. Practice policies should stress to all staff that they are expected to maintain patient privacy and confidentiality, and why this is essential.

3. Bullying, harassment, discrimination

It is important for employees to understand that inappropriate workplace behaviours such as bullying, harassment and discrimination, and online abuse or vilification may breach employment obligations, whether they occur online or in the workplace. The Royal Australian College of Surgeons’ factsheet outlines the kinds of behaviours that could fall into these categories.

4. Defamation

Social media posts can be defamatory. Staff need to understand what kinds of comments they must avoid posting, liking or sharing so as not to find themselves or the practice, caught up in costly and damaging defamation proceedings.

5. Intellectual property

Social media policies should also explain the need to respect the practice’s intellectual property – which may cover aspects of the practice’s design, forms, processes, policies etc developed by the practice. For example, staff should not share practice policies or other information in online forums.

6. Reputational damage to your business

Whether or not businesses have the right to manage out-of-hours conduct by staff on social media is a complicated legal issue. The courts have previously found employers can be liable for employees’ online behaviour where there is a sufficient connection to the workplace. Employers also have a right to discipline employees who engaged in out-of-hours conduct that is sufficiently connected to the workplace.

More information

Avant has developed a range of articles and resources to assist you:

If you require advice on your privacy obligations, visit our website or for immediate advice, call us on 1800 128 268, 24/7 in emergencies.

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