When the internet first began in early 90s one of its defining characteristics was anonymity. People created Hotmail, Yahoo and AOL accounts with usernames like sexysmuff1977 or surferdude12. The old internet was very private and had little connection with one’s private, professional or civil life.
That era is over, since the rise of Facebook and smartphones the three spheres of a person’s life have merged. Never before has one’s employer had such a direct view into one’s private life. Over the same period of time, organisations have never been so conscious of their ‘corporate responsibility’. The same organisations that will shamelessly outsource jobs and make long term workers redundant are desperate to seem inclusive and diverse. Many of these organisations require their workers to sign social media policies that significantly restrict what their workers can say on social media. How do these policies affect free speech? And what are the potential risks for employees of such organisations?
Probably the most infamous case of corporate social media policies conflicting with free speech was when feminist Clementine Ford named and shamed a man on Facebook who called her a ‘slut’ among other things not worthy of being repeated. His Facebook profile named his employer and she lobbied that employer to terminate his employment. They did. Another significant case was when a man working at the Melbourne Airport jokingly shared ISIS propaganda and implied that he supported it (sarcastically). In that case the man was terminated, but, the Fair Work Commission determined that the sacking was unlawful.
It’s easy to imagine why an organisation would want to restrict the free speech of their employees. In this era of faux outrage, an organisation can easily become the subject of a boycott campaign and significant damage can be done to its reputation. In such cases, the easy option would be to terminate the problem employee, release a media statement distancing themselves from the offending social media post and hope things return to normal. The question then becomes does an employer have the right to discriminate against people with unpopular views or who say questionable things on social media?
There are two arguments one could make: The first is a free speech absolutist position. This view is that free speech is more than just a legal right not to be prosecuted by the government for one’s speech; but, that people have a right to express their views without being fired from their employment or being no-platformed. (A recent example of this was Nicola Wright’s article on the no platforming of the Men’s Rights documentary Red Pill) This view puts free speech on par with other protections employees have around their religion, gender and sexuality. Theoretically at least, political views are already covered under anti-discrimination legislation.
The second view is that free speech is limited to protection from coercion by the government but organisations are free to discriminate against people whose views contradict their corporate values. I’m quite sure that David van Gend from the Australian Marriage Forum is glad he decided to become a doctor in private practice and not a pilot for Qantas, since Qantas Chief Executive, Alan Joyce has been actively campaigning for marriage equality. It should be noted though that the right to discriminate is not one organisations enjoy in other areas.
The common law position on these cases is still evolving, and it’s not yet clear where the line will be drawn. A possible middle position may emerge where people’s right to free speech will be protected provided nothing on their social media account identifies their employers. In practice, I suspect that this is easier said than done. In case of the man outed by Clementine Ford he was using a personal Facebook account and the only mention of his employer was in his profile section. This was not a work Facebook account and organisations have a clear right to control social media accounts they own or are clearly used for work purposes.
The response of many people to this is to create two separate profiles, one for work and one for home. However, this doesn’t guarantee protection. Had the man not had his workplace on his Facebook profile, a quick google search may have found his LinkedIn profile or description on his company’s website. It’s not hard to imagine social media mobs still targeting someone’s employer in such a situation. How would the Fair Work Commission rule in such a situation? Will the law come down on free speech or on the right of an employer discriminate? Only time will tell.
Justin Campbell is on the executive committee of LibertyWorks