Page 41 - CCCA Magazine Winter 2014

{ sPotligHt oN… } “ It’s not quite private because it is generally a broadcast medium. It’s not quite public ” because the broadcasts are restricted to a particular class of viewers. private because it is generally a broadcast mer employer has no way of knowing ■ The employer knew or could have de- medium. It’s not quite public because the whether a clause is being complied with tected the improper statement; and broadcasts are restricted to a particular unless a current client or employee in- ■ The employer asserts ownership over class of viewers.” forms them about it. the social media property. Varah advises employers to draft care- Kettles advises employers to develop con- fully worded non-solicitation clauses that 4. an exploration into vicarious liability sistent, easy-to-understand policies about will cover social media communications. According to Brent Kettles, associate at what employees can and cannot do on These clauses must prohibit only the Lenczner Slaght, “Employers may be social media, which outline how the em- type of communications that harm the found liable for employee statements ployer will police such employee activity employer. As she explains, “Clauses are on social media which are defamatory, if they will be policing. However, employ- enforceable if they are reasonable with re- breach confdentiality, or are otherwise ers should be aware that if they do decide spect to geographic scope, extent of pro- unlawful or illegal.” He explains that em- to police activity, they will face a higher hibited conduct and period of time.” ployers are more likely to be held vicari- chance of being held vicariously responsi- However, employers need to keep in ously liable where: ble should illegal behaviour not be caught mind that just because a clause is legally ■ There is a nexus between the employee’s and remedied. ❚ enforceable, it may not be practically en- tasks and the statement made; forceable. This is because the ex-employee ■ The employee makes the statement has control over any privacy settings on from employer’s premises using em- Karen Sadler is the Marketing and Communications their social media accounts, and the for- ployer equipment; Coordinator at the CCCA. Canadian Corporate Counsel assoCiation | CCCa-aCCje.org 41