About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most