Social media is currently the ‘in’ word among employers in New Zealand and Australia, probably more for a lack of knowledge of what it is all about than for the actual problems it causes. Which, if we are honest, are actually nothing new. There is no legal difference between disparaging remarks about your employer made in the pub or on facebook. What is different now is the level of control we have over such comments. Your rant in the pub probably stays there because your friends have it all heard before and have their own problems. But once you post it on the net, it takes off and can not be retrieved or taken back. It might even survive out there forever, in one form or the other. It is at that point that employers start to get a bit nervous and become anxious to limit ‘this social media thing’. So its all about prevention and damage control and most of it is common sense – have proper policies in place, limit access to certain sites, educate your staff etc.
For organisations operating across a number of jurisdictions, limiting these risks can be a challenging exercise as different jurisdictions require different approaches. Below is a link to great resource (156 pages!), a guide to Social Media in the workplace for pretty the whole Asia-Pacific, covering Australia, New Zealand, Thailand, Vietnam, China (!), Hong Kong, Malaysia, Pakistan (!) and many more. Like the Dispute Resolution guide I linked to in a previous post, this is an incredible useful tool and makes for fascinating reading as well:
Just the other day I blogged about China’s culture being all about persistence as a skill the West is more and more lacking, and today I came across this article from ‘Business Insider’ with a speech by Niall Fergusson, an Economist and Harvard Professor. Its a very interesting read and the bits which stand out for me are:
If we look at the US and China per capita to GDP ratios we find that in 1978 the average American was 22 times richer than the average Chinese citizen. Today, that ratio is down to only 5 times. The great divergence of prosperity that was generated by the strength of capitalism is now the great re-convergance.
There were “6 Killer Apps” that defined the U.S. during its great economic growth cycle.
2) Scientific Revolution
3) Modern Medicine
4) Consumer Society
5) Work Ethic
6) Property Rights
Those issues allowed for growth, innovation and rising economic prosperity during the 20th century. Today, while the rest of the world has slowly been adopting these “killer apps” the U.S. is slowly losing them.
A contract for services is different to a contract of services. And the main difference between a contract for services (contractor relationship) and a contract of services (employment relationship) is that only the latter provides rules for termination.
This basic rule was confirmed by the High Court in Ike v New Zealand Couriers Limited  NSHC 558. Mr Ike’s contract was terminated due to him committing two breaches of NZ Courier’s procedures within a 60 day period and he challenged the termination, arguing that his contractual relationship was so similar to that of an employment relationship that NZ Couriers should have treated him fairly and give him a chance to remedy the breaches (which the contract did not provide for).
Not so, the HC found. Rules of fairness and procedure are implied in an employment relationship, but not in a contractor relationship. In the absence of a contractual obligation on NZ Couriers to act reasonable, they were entitled to terminate in accordance with the contract.
That makes sense and what Mr Ike should have done instead, of course, is to lodge his claim in Authority and not the High Court. Given that most contractor relationships, especially in the courier industry, come very close to being employment relationships, he might have had more success arguing that he was in fact an employee, not a contractor.
Too late now.
We know that employment relationships are fiduciary in nature. That means both parties have an obligation to prevent harm from the other. Or, as the case may be, to make good for harm done in the course of the employment. The most common fiduciary duty is the duty of fidelity, which includes obligations to act in the employer’s best interests, for instance by not disclosing confidential information and not performing work for (or helping) a competitor of the employer.
That all makes sense and you would think that such duty also includes reporting own and other employees wrongdoing, right? Well, maybe not according to a recent decision by the Supreme Cour of Victoria where the Court held that while employees are under a duty to disclose potential or actual conflict of interest, they are not obliged to disclose past wrongdoing. Neither is there a general duty to report misconduct of fellow employees. However, this might be implied when the employee is in a managerial position.
Its difficult to reconcile that statement with the good faith obligation under the NZ Employment Relations Act which includes an obligation to disclose also past wrongdoings. For instance, if an employee has lied on his application form about previous convictions or made up qualifications, such conduct would clearly go to the heart of the relationship and justify dismissal even years later. After all, how can the employer trust someone who was dishonest right from the beginning of the relationship?
So, for the time being, at least in New Zealand the application and scope of fiduciary duties remain unchanged.
The recent victory of iiNet against claims of copyright infringements of major film studios through iiNet’s peer-to-peer network, shows how difficult it is to hold an internet service provider liable.
The plaintiffs alleged that iiNet had authorised illegal file sharing and did not react promptly to warning notices sent to the respective customers. The Court however held that mere indifference does not constitute authorisation (as required by the Copyright Act).
This sounds suspiciously like the old argument that manufacturers of photocopiers can not be held liable when their products are used for forgeries. Of course, when it comes to ISPs, such argument does not really work because an ISP retains control of what happens on its servers, whereas a photocopier manufacturer does not. But given the millions of users, how much control does an ISP effectively have? And at what stage can or should they intervene if they come across suspicious behaviour?
In NZ, the recent amendments to the Copyright Act introduced a three-strike system for copyright infringers. However, the amendments did leave the safe-harbour provision in section 92B Copyright Act 1994 untouched, which basically says that mere knowledge of an infringement does not mean the ISP has authorised the infringement. This is almost exactly the same statutory basis as under the Australian legislation.
However, it is important to note that in the iiNet case the Court found that the warning notices were not specified enough, hence did not provide iiNet with sufficient information to act upon. Given the new statutory regime under the NZ Copyright Act, it is therefore safe to say that if a NZ ISP receives notice of warnings which comply with the requirements under the Act, any continuation of providing services to the infringer would very likely result in the ISP being liable for all infringements as of that point.
So ignorance is still no excuse once you have been properly informed.