Almost 80 per cent of Australians use social media daily, making it an impactful and effective communication tool. But it can also carry significant legal risks for companies, directors and staff that must be navigated carefully.
Legal obligations for boards and directors
Boards and directors have clear legal obligations to ensure the health and safety of their staff while engaged in work. This now includes safeguarding employees’ psychosocial wellbeing in all areas associated with their work, including on social media and other online platforms used for professional purposes. This could be emails, work-related messaging platforms like Slack or Teams, and virtual meetings or webinars.
Since December 2022, employers and persons controlling a business or undertaking have also had a positive duty to eliminate, as far as possible, unlawful behaviour, including sexual harassment and sex-based harassment. This duty generally applies within the office or workplace, but can also extend to harassment perpetrated online or via social media if the conduct occurs in connection with work.
In March 2023, the Fair Work Act 2009 adopted an express prohibition on sexual harassment, which attracts penalties for non-compliance. It is important to recognise that requiring staff to participate in social media for the company can expose those employees to harassment through comments, reposts and other online interactions.
Potential legal risks
A social media post going viral is a dream come true for many marketing teams. However, the reality can be much harsher if the post involves employees and attracts negative attention.
Boards should ensure that companies actively manage the various legal risks that can arise. Posting a photo or video that features a staff member (or their work environment) can expose them to harassment through unwanted contact from strangers, negative comments about their appearance or, in extreme cases, stalking or doxxing (publicly revealing an individual’s identity or private information online without consent).
If the content is posted on the company’s social media account, the employer may ultimately be held accountable for any harm the content causes to individual staff members. This can lead to psychological injury or harm to the individual, and potential WorkCover claims or damages to be paid.
Featuring staff on social media
Employers seeking to feature their staff in social media content should keep the following points in mind: Be aware of the legal, and health and safety risks of featuring employees in social media content or filming in the workplace.
Protect confidential information — both about the work environment and sensitive business details. Make sure there is no data visible on computer screens, whiteboards or items like name badges and personal photos in your posts.
Establish clear procedures for obtaining and documenting explicit consent for staff involvement in social media posts through photography and videography consent forms.
Ensure your company policies are updated to include reasonable expectations about requirements for staff to participate and feature in social media content associated with their roles.
Clearly define your expectations of an employee in their role. If you are seeking to feature employees in social media content, this should be included in their position description and role and responsibilities, where possible.
Can they say no?
If staff members are not aware that creating or appearing in social media content is part of their duties, employers should be prepared that they may say no.
The general rule is that staff are required to follow reasonable and lawful directions from their employer. But is a direction to participate in and be filmed for social media considered lawful and reasonable? Yes, if it meets certain criteria.
It is reasonable for a staff member to decline if this expectation had not been raised with them previously, or documented in policy or their role description.
Employment agreements and position descriptions that contain a broad obligation to “perform such other duties as the employer may reasonably direct from time to time” — of which many do — are likely to support the notion that a request for an employee to be involved in social media is a lawful and reasonable direction.
Reasonableness is assessed based on the specific circumstances of the issue, including the employee’s role, established workplace customs and the terms of relevant instruments like modern awards and enterprise agreements. For example, asking a staff member in your finance department to participate in a TikTok dance for the company’s social media account is unlikely to be considered a reasonable request.
For those whose job responsibilities include creating social media content, such as the marketing team, a request to participate on camera could be seen as reasonable. However, if social media activities fall well outside the scope of their usual responsibilities, the request may be viewed as less reasonable.
It is also important for employers to consider the staff member’s right to privacy and a personal life. They may have personal circumstances that would make appearing on social media unsafe or unwise. This should be respected and accommodated.
This article first appeared under the headline ‘Psychosocial risk of social media in the workplace’ in the March 2025 issue of Company Director magazine.
Rachel Drew is a partner at Holding Redlich Queensland, specialising in workplace relations and safety. Rose Dimitrious is a Special Counsel, in the workplace relations space, focusing on HR advisory. Maud Beach is a lawyer, focusing on employment law.
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