Legal aspects

Three pieces of primary legislation apply to the use of social media at work:

The Human Rights Act 1998 enshrines the ‘right to respect for private and family life, home and correspondence’. All courts are required to interpret existing law in relation to the Act, while outcomes in case law suggest employees can reasonably expect workplace privacy

2  The Regulation of Investigatory Powers Act 2000 sets out circumstances in which an organisation may monitor employees’ communications. It may do so where the monitoring is carried out with the consent of the sender and the intended recipient, or where the employer reasonably believes that consent has been given. Monitoring may be carried out without consent to prevent a crime, to comply with financial regulations or to protect the organisation. But the Act also gives employees scope to sue employers in circumstances where monitoring is unlawful

The Data Protection Act 1988 requires employers to ensure their own and their employees’ use of personal data in social media activity complies with its requirements (see article 43). The Employment Practices Code, published by the Office of the Information Commissioner, can help employers comply with the legislation.

Putting the law to one side, it’s the very best practice – and the fairest way for all concerned – for an organisation to proactively communicate its intentions and consult employees about its approach to monitoring social media use, and how this also applies to private use of social networking sites.

Legal experts also caution that using social media in recruitment ‘vetting’ could risk breaching privacy, data protection and anti-discrimination laws – see articles 19, 43 and 65.