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Authored by Philip Milley, Associate Director of Legal Affairs 

Have you ever read the comments on a Facebook post and cringed? The cruel and unrelenting nature of public comment has led some news sites to remove comment sections altogether. I am constantly surprised at the tone, cruelty, and content of the comments some make online. Social media has developed into an area where no-holds are barred.

Social media has many benefits and it is no coincidence that use of social media to share content, gain feedback, and increase online traffic is common place among charities. Organizations, not just charities, rarely turn their attention to the risks associated with social media use until there is a problem. Some organizations have adopted policies to manage employee use of social media and to set rules for employees engaging with the public. These policies generally aim to protect the organization from productivity loss and civil lawsuits.

A recent arbitration decision[i] represents a shifted focus on social media use by organizations to the protection of employees from harmful posts. The decision focuses on the obligations under occupational health and human rights legislation to provide workplaces free of harassment[ii]. The significance of the arbitrator’s decision is that social media accounts may now be considered an extension of the “workplace” thereby triggering employer obligations to protect employees from harassment.

The facts of this case are straightforward. The Toronto Transit Commission (“TTC”), maintained a Twitter account to engage with the public and respond to complaints.  The account was monitored by TTC staff who responded to numerous tweets each day that expressed, among other things, dissatisfaction with the service provided by TTC. Staff were constantly overwhelmed by the amount of abuse being inflicted on them by the public. Examples of abusive tweets include racist and homophobic remarks, vulgarity, and death threats. The employees raised concerns about the Twitter account that permitted customers to make comments which made them feel intimidated, bullied, harassed, and threatened.

The TTC argued that it was not possible to regulate the public and ensure that no negative comments are posted on the account. When the TTC received profane or otherwise inappropriate tweets, it generally sent a response indicating that it does not condone abusive, profane, derogatory or offensive comments, and asked the tweeter to please refrain from making those comments. If the comments continued the tweeter could be blocked. The arbitrator stated that while those types of responses may dissuade some from sending offensive tweets, they are certainly not universally successful in that regard, as they sometimes result in further more offensive tweets.

Due to the two-way nature of the social media account, the arbitrator concluded that the employer facilitated a public forum and it reasonably ought to have known that its employees were being harassed. Ultimately, TTC failed to take all reasonable and practical measures to protect its employees from the abusive tweets that led to a poisoned work environment and harassment.

The arbitrator concluded that the employer must take positive and reasonable steps to see that the workplace is free from harassment. Although an employer cannot control everything that everyone does, it is not relieved of the obligation to provide a safe workplace.

What this case means for Charities

While this case does not have the force of legislation or court decision charities should still take note as this case may signal an acknowledgment that the law is developing with technology as social media accounts may form part of the virtual workplace. Indecent, inflammatory or insulting messages from the public may subject employees to harassment. The challenge of regulating public comment on social media accounts will not alleviate obligations to maintain a workplace free from harassment.

Managing public commentary on social media is a challenge on the best of days. Unfortunately, the arbitrator made no specific statement as to what steps were necessary for the TTC to meet its legal obligations. He did, however, note that the following considerations may be helpful in mitigating the potential for harassment. He noted at paragraphs 133, 146 and 147:

  • The employer should try to deter the public from making negative posts.
  • The employer could adopt policies, guidelines, and appropriate template responses to deal with offensive posts
  • Delete the offensive tweet or block the offensive individual from posting
  • Seek the assistance of the social media provider to having posts deleted
  • If the social media provider is unwilling to assist, it is a factor for consideration in determining whether the employer should continue to use the social media site.

Since, social media accounts may now be considered part of the ‘workplace’ negative comments made to social media accounts must be understood as more than simply a public relations challenge. While this may not be binding on employers it is a case that all employers that use social media accounts should be aware of.

[i] Amalgamated Transit Union, Local 113 v Toronto Transit Commission, [2016] OLAA No 267.

[ii] See for example, Human Rights Code, RSO 1990, c H 19 s. 5(2) and Occupational Health and Safety Act, RSO 1990, c O1 s. 32.0.1.

Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.

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