Where do the ever-blurring lines between personal and business interaction on the social web meet? Most employers and employees do not know and the law has yet to reflect the intricacies of online interactions.
ESI includes social networking platforms
Whereas 10 years ago it was relatively novel to include email as a form of evidence it is now the case that social networking has overtaken email in popularity, and internet usage policies in most companies do not reflect this change.
"Whereas a decade ago email was often excluded from discovery as part of an unspoken agreement between parties, today all sorts of electronic communications are potentially discoverable. User activity on social networking sites like Twitter, LinkedIn, Facebook and MySpace warrant serious concern," wrote H. Christopher Boehning and Daniel J. Toal on their Law.com blog Law Technology News last year.
"Like it or not, social networking has come to the office, and its arrival presents a host of challenges. Those challenges can best be met through a formal policy, which should also address how to consider this online activity when collecting ESI (electronically stored information) for discovery," they added.
Workers tweet and post as part of job
Social networking in the workplace does not just consist of workers uploading holiday snaps to facebook or tweeting "OMG, the canteen coffee is awful. LOL". It is being used for business.
In fact recent research by IDC found that 57pc of workers in the US use social media for business purposes at least once a week.
Can employers dictate how you live your online life and is your digital existence theirs for the taking by virtue of the mix of business and pleasure on the social web? Well, it’s complicated.
Legal precedent and data owership
With email there is already legal precedent in the UK. The case of PennWell Publishing (UK) v Ornstein and Others (2007) ruled that the employer owned the Microsoft Outlook contacts of a former employee despite the fact that this list of contacts included the email addresses of friends and family as well as contacts initiated by the former employee.
Most recently a London court ruled that a former employee Mark Ions of HR firm Hays hand over his LinkedIn contacts. There are several elements to this case. Ions used the contacts he cultivated while at Hays to set up a rival company before he had left their employ.
Ions argued that he had been encouraged by Hays to create and build up a LinkedIn account but handing over his LinkedIn contacts was part of a decision that he had breached his contract. Had he waited until his departure it is possible that his social networking contacts would have remained his own.
"Sooner or later firms face the very real danger that employees or former employees will routinely contest data ownership issues in the courts," says internet filtering software company SpamTitan Technologies.
Web filtering is an important part of the process
In a recent survey by SpamTitan of 200 SMEs worldwide earlier this year it was found that nearly every company internet access and some social networking applications in the workplace.
Seventy six percent of survey participants said web filtering was important in the workplace but only 51pc were using some form of this.
The digital citizen
Interestingly the EU is looking to draw up rules and guidelines on the internet in our working and personal lives with the 2015.eu initiative. This is a digital agenda for Europe proposing "all EU citizens should be made aware of their basic digital rights and obligations through a European Charter of citizens’ and consumers’ rights in the digital environment".
This is probably the best solution for now. A legal framework that protects the individual online while the onus for an acceptable usage policy as a representative or employee of an organisation falls to the organisation itself.