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39 Comp. Lab. L. & Pol'y J. 357 (2017-2018)
Online Speech and the Workplace: Public Right, Private Regulation

handle is hein.journals/cllpj39 and id is 379 raw text is: ONLINE SPEECH AND THE WORKPLACE: PUBLIC RIGHT, PRIVATE REGULATION David Mangant I. INTRODUCTION Information technology offers an unprecedented opportunity for individuals to express themselves to the public at large. It also provides for widespread monitoring of these remarks by employers, coworkers, and the public. The freedom to express online is notably constrained by the contract of employment for anyone falling under the heading of worker. The breadth and strength of contract clauses (and, if incorporated into the contract, workplace policies or handbooks) regarding social media use can be seen in how these provisions vest employers with the authority to determine whether remarks reflect negatively on the undertaking's business reputation. This situation warrants further consideration. Free speech remains a championed value in many countries. It has emerged as a touchstone of modem democracy (itself largely secular and West-centred'). Still, the perceived value of free speech does not appear to permeate the personal work relationship. Decisions in this area offer a further point of interest: How do employers find out about these remarks? In some instances, employers are notified of online remarks by other workers or even members of the public. In others, employers have come across the remarks, seemingly through Internet searches but it is not clear if this is by way of a decision to monitor workers or by way of general Internet searches. These reasons for the information coming to employers' attention casually bypass the question of whether or not there has been an intrusion into workers' privacy rights. Consequently, privacy rights waived appears to be an underlying notion: if comments are made on social media, then any privacy right has been automatically abandoned. This is a debatable premise and much has been written on the privacy interests of workers.2 The supposition relies on the false understanding that all comments made online are public; ignoring the t City, University of London; Adjunct Professor, Osgoode Hall Law School. The Law Commission of Ontario supported this research. 1. As Professor Twining has characterized modern law, W. TWINING, GENERAL JURISPRUDENCE: UNDERSTANDING LAW FROM A GLOBAL PERSPECTIVE 6 (2009). 2. See, e.g., MATTHEW W. FINKIN, PRIVACY IN EMPLOYMENT LAW (4th ed. 2016). 357

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