06. Social Media and Data Privacy in Australia

Restrictions in the Workplace

The obligations of employers with respect to privacy are found within various federal, state and territory laws. In some respects, the law differs between the states and territories.

Can the employer monitor, access, review the employee’s electronic communications?

The general position is that an employer can monitor its employees’ usage of work computers (in some states legislation requires specific notices and warnings to employees before allowing computer monitoring) and restrict the use of the Internet and social media during work hours. In certain circumstances, an employer may also be able to monitor its employees’ conduct on social media outside of work hours and rely on that conduct when considering appropriate disciplinary action. However, it is important for employers to implement a thorough and clear Internet and Social Media Policy if it intends to monitor, restrict, access and review employee usage.

Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information

The ability of an employer to take disciplinary action based on Internet usage and conduct on social media is typically addressed in the contract of employment, however, it is best for an employer to also have a detailed policy which deals with these matters so that employees are made aware of the employer’s expectations. This should include the employer’s expectations around internet and social media use, both during and outside of work hours. This becomes particularly important if an employee uses the Internet or social media to disparage the employer, or divulge its confidential information, and the employer wishes to rely on that conduct in taking disciplinary action.

There are, however, limitations on the extent to which an employee’s conduct on social media could provide a valid reason for their termination. This will depend, in part, on the nature of the comments and statements made and the width of their publication.