The employment setting reveals much about the competing interests subsumed within the term ‘social media’. At the forefront of considerations is business reputation – a phrase which has been used as the basis for limiting workers’ speech. Focusing on UK law, to permit discipline for any form of social media remark (as is currently the case) would be inconsistent with the spirit of twenty-first-century developments in the common law understanding of defamation law that have expanded protection for speech. The argument here is that, following developments in defamation law, in the employment setting there must also be scope for remarks by workers on user-generated content platforms, while also protecting business reputation. Keywords: employment; discipline; defamation; business reputation; workplace speech
Three examples from the United Kingdom will be used to explore a troubling movement towards precarity. First - a familiar refrain in English labour law - trade unionism has again been challenged with further trade union legislation: the Trade Union Act 2016. Second, with the development of information technologies, workers may be disciplined (up to and including by termination) for anything they may post on social media platforms that, in the employer's opinion, causes embarrassment or harm to the employer. Third, the stifling of workers' access to redress complicates employment protections, betraying the situation that workers are often one dismissal away from difficulties. The hurdles put in front of workers as a cohort suggest a wider application of the adjective 'precarious'. Deepening precarity includes a larger cohort of workers as their freedom of association, freedom of speech, and right to access to courts are simultaneously curbed. The UK Supreme Court decision regarding tribunal fees will be assessed as a signpost regarding precarity: a potential tipping point in the understanding of employment regulation that renders the workforce more vulnerable.
This chapter outlines Canadian defamation and privacy law to critically engage with particular problems in these areas, including difficulties in scope and, in the case of privacy, form. Canadian law in these areas has maintained a relative distance from developments in information technology. Only when the issue pushes through in a particular context has there been any movement; an overarching treatment of the intersection between law and cyberspace being largely untouched. Libel has been reformed in order to bring Canadian law into line with other jurisdictions. However, the print media paradigm continues to influence the shape of the common law. Privacy remains slow to develop, beyond specific legislative and common law steps. The present, with rapid and diverse developments in information technology, is the time to engage with defamation and privacy in a manner that integrates a framework for the law with innovations in information technology.
The labour law perspective divides social media influencers into two groupings. First, social media influencers exist in law as commercial entities themselves, beyond the remit of employment law regulations. Second, social media has subtly infiltrated the orthodox workplace setting, with the by-product of employers deploying their workers as influencers within their own social networks. The distinction between an independent commercial entity and a worker or employee (as a category variously captured by employment regulation) remains contested terrain. While this topic travels into that debate, this chapter predominantly examines how social media influencers reveal information technology’s impact on labour law.