Social Media Usage and Employment Law

By Max Wootton

The rise of social media has undoubtedly revolutionised society. As more of our work and home affairs are conducted online, and with the ability to access data from work at any time, the line between personal and work is increasingly blurred.

This in turn presents different challenges for employees and employers. Employees may be confused regarding what is acceptable and not acceptable on social media. Whilst in this changing landscape, employers may need to take steps to protect their business.

Our employment team is available to provide some much needed guidance on this difficult issue for employers and employees.

Expressing Opinions Online

Expressing opinions online is an extremely grey area. An employee is allowed to say what they want, so long as they are not breaking the law when doing so. Its best to adopt an approach of not posting anything online that could possibly be construed as being detrimental to your employer or a fellow employee.

Posting Content Damaging to an Employer

It is possible under the law to be dismissed fairly for content posted on social media that can be construed as damaging. This is especially true if what has been posted is classed as defamation, where you could be subject to legal proceedings potentially resulting in a financial penalty.

Advice to Employees

The main advice to employees is to use a common-sense approach. Check your contract of employment or your employee handbook, which should contain policies pertaining to social media usage.

Freedom of Speech and Employee Rights

The Human Rights Act, 1998 affords individuals “the right to freedom of expression.” However, that can be qualified by “necessary” restrictions prescribed by law. Restrictions will be contained in an employment contract or a company handbook so make sure you are familiar with those sections.

Protecting Your Business as an Employer

There are three main ways an employer can best protect a business from damaging social media. The first is policies, employers must make it clear what online conduct is acceptable and what is not. This will be done through contracts of employment and other contractual policies. Employers must be clear when employees will be seen as representing the employer.

The second way is training, employers should ensure that their employees know what is acceptable and unacceptable on social media. Training can be conducted through webinars, sending employees on courses, or outsourcing to a private company.

Finally, employers should engage their employees and provide them channels to provide feedback anonymously. Research has shown these provisions allow employees to share their thoughts in a constructive way, rather than posting on social media harmful content about an employer’s business.

How we can help

If you would like some advice on this issue, either as an employer or an employee, contact our employment team directly via:

Telephone:  0333 231 6405

Email: employment@cjch.co.uk

Licence Compliance: Stopping digital infringement behaviour

Repost from CJCH Consulting.

At CJCH, we have established ourselves as world leaders in an industry which is still gaining public awareness and understanding. As a Firm, we have developed an innovative and systematic approach to not simply identifying an incident of software piracy, but to manage that process through the full lifecycle of enforcement to licence compliance and the recovery of lost revenue for our clients, the copyright owner.

Getting to know the terms

Terms such as “anti-piracy” and “licence compliance” might seem to be counter-intuitive, but in reality, are quite straight forward. Anti-Piracy is the process of instituting countermeasures to piracy. In our industry, piracy does not mean eye-patches and cannon battles at sea. Rather, it refers to the reproduction or unauthorised use of someone else’s work or innovations.

Physical copyright infringement, such as reproduction of clothing, is commonly known as counterfeiting. When it comes to the digital arena, such as computer games and software, we refer to this as piracy.

Licence compliance” is a term used to describe the process which follows on from the identification of infringement activity. The licence is the right the software developers give to the users which allows them to use the product they have developed in a specific way or format. These details are usually outlined in a “ULA” or user licensing agreement. Terms will vary depending on the developer, but any user who uses these products is agreeing to these terms when they install and/or use the software. The terms usually include the number of times the product may be installed on a device or number of devices it may be installed on. They may also relate to the number of users who may use a single licence, the location the licences may be used in, or the primary function the licence may be used for, i.e. personal, academic, or commercial use.

Therefore, licence compliance is the process by which the owner of the copyright takes action to enforce their copyright and require an unauthorised user (someone who is using a fake, copied, or cracked version of their product without paying for it) to pay for the licence and usage that they have benefitted from.

What is a Raid?

In a field shrouded in misperceptions and deception, we often come across infringements that, for various reasons, such as the scope of the violation, require a more direct and tactical intervention – an on-site inspection ordered by a law-enforcement authority (often informally referred to as a Raid).

As mentioned above, copyright infringements constitute a violation of intellectual property rights. Due to the intangible nature of computer programs, there are mechanisms which allow for software infringements’ traces to be easily hidden or deleted by the infringer. This makes it very difficult for the right holder to enforce their rights and consequently could result in the infringer being able to avoid liability. 

An on-site inspection is an approach we use which helps to avoid these risks. An unexpected inspection on the premises on the infringer, ordered by a law-enforcement authority enables the right holder to obtain and/or secure the evidence of the software infringements currently being used and has proven a very effective remedy. 

How can this be implemented?

Around the world, the legislation of various nations usually provides the possibility to obtain an ex parte / Inaudita parte order (meaning it is in the interest of one of the parties to the matter) for the inspection which will be granted by the relevant authority (court, prosecutor, police…) depending on the jurisdiction. Once this order is obtained, and following the regulations of that particular jurisdiction, an inspection is conducted, usually under the supervision of local law enforcement, to inspect the premises of suspected infringements. 

Access to the premises is granted, by order of the authority, and the inspection is carried out. All computer devices and IT equipment are inspected, and evidence of unlicensed software use is gathered/or preserved.

On-site inspections are a legal process which we manage on behalf of our clients and is a service which has allowed many of our clients to expose large volumes of unlawful use of their products which have been stolen from them. 

CJCH have a dedicated on-site inspection team which are strategically placed to observe and monitor our client’s usage data. To date, they have managed the legal process relating to on-site inspections for a number of cases and have recovered in excess of €1 million in revenue for our clients (with up to a further €1 million in pending action).

CJCH Solicitors – Cardiff Life Awards Finalists

We are proud to announce that for a second year in a row CJCH Solicitors has once again named a finalist in the prestigious Cardiff Life Awards. Our firm is honoured to server our community and delighted to be in the Legal and Financial category.

We are also excited to see the caliber of our fellow nominees, as we are sharing the spotlight with some phenomenal local and national brands that make up the 2019 Cardiff Life Awards finalist list.

We look forward to celebrating with all the guests at the gala event at Cardiff City Hall in March.

CJCH Solicitors partner named one of Wales’ 30 young lawyers to watch!

The senior partners of CJCH Solicitors are proud to congratulate Amy Roberts-Rees, our firm’s partner in charge of the Mental Health Law and Court of Protection practice, for being named one of the 30 young lawyers to watch in the Wales Online publication.

Amy joined CJCH in 2013 as a partner and has been instrumental in expanding the great work we do in Legal Aid to represent those in need of assistance with Mental Health Law. Amy has also developed and grown our Court of Protection practice, and built a high performing, client-centric department of dedicated specialists.

Congratulations on a well-deserved accolade and recognition of your continuous growth.

Find the full Wales Online feature here.

 

Fluctuating capacity and how to address future uncertainties of care planning in a section 21A appeal

By Emma Sutton (instructed on behalf of MB) and Rebecca Evan-Williams (CJCH Solicitors). Re-post of article from No5 Barristers Chambers.

31 January 2018

Background

The court had before it an application brought on behalf of MB pursuant to section 21A of the Mental Capacity Act 2005 (‘the Act’) by his RPR, Mrs Claire Reid, to challenge a standard authorisation made in accordance with schedule A1 of that Act; the primary challenges being whether the mental capacity and best interests qualifying requirements were met. So far, so good.

MB had resided in a care home since 2008 and had a diagnosis of moderate learning disability, autism spectrum disorder and complex epilepsy and as a consequence of his diagnoses, required close supervision of daily living and prompting from his carers.

Due to the complexities of MB’s presentation, a number of expert reports were necessary to assist the court to resolve the proceedings and a position was reached whereby the capacity evidence prepared by Dr Michael Layton (Consultant Psychiatrist) and Dr Lisa Rippon (Consultant Developmental Psychiatrist), and their jointly prepared statement, was accepted by the parties. The expert evidence unanimously concluded that MB had the capacity to make decisions regarding his residence and care needs, but lacked the capacity to conduct the proceedings.

By reason of the above, the court accepted that it had no jurisdiction to make best interest decisions regarding MB’s residence and care; notwithstanding his requests to leave his care home and move to alternative accommodation. The court determined (per section 21A(2)(a) and section 21A(3)(a) of the Act) that MB did not meet all of the necessary qualifying requirements in order for a standard authorisation to be in place (the mental capacity qualifying requirement not being met), and on such basis, the standard authorisaation was terminated with immediate effect.

Comment

Mrs Reid, as MB’s litigation friend, fully recognised that MB would (as a consequence of the expert evidence) effectively be removed from the procedural safeguards contained in schedule A1 of the Act. Her status as RPR would also end upon the termination of the standard authorisation.

Although his ‘appeal’ had been successful, careful consideration had to be given prior to the final hearing as to whether the case fell into the ambit where ‘contingent’ capacity decisions were appropriate. The Court of Protection Practice helpfully provides a template order [see pages 2362-2364 of the 2017 edition] for such circumstances and this was brought to the courts attention. However, on the facts of this particular case, it was accepted that there was no identifiable external trigger which would ‘cause’ a loss of capacity – for example, another person who unduly influences P, P resorting to alcohol use, capacity being dependent on a continuance of training/ advice etc.

Instead, MB’s fluctuation of capacity was intrinsically linked to his own inherent complex functioning and could not be put into a prescribed ‘box’ of when he would and wouldn’t have the ability to make capacitous decisions. In this regard, the experts said this:

Both Dr Rippon and Dr Leighton agreed that MB’s capacity could fluctuate during times of seizure activity but also when his level of anxiety rises and he becomes distressed because of environmental triggers. It was Dr Leighton’s view that these periods could last for several days and he gave the example of the time that MB had become angry with his RPR and had refused to see her for a week. However, what is less clear is whether his capacity was affected over the whole of this period. Therefore, although both doctors agreed that MB’s capacity had fluctuated, what is less certain is how long these periods could last(my emphasis)

As MB’s care plan had (for the past 10 years) met his complex needs, and due to the lack of specificity regarding whether and if so, for how long, seizure activity could potentially impact on his decision making, it was not considered appropriate for further exploration to be given to this issue – particularly as the ongoing nature of the proceedings was having an impact on MB.

A further point that required consideration was whether the appointment of an independent advocate (within the meaning of section 67 of the Care Act 2014) to represent and support MB for the purpose of any future needs assessment and the preparation of a care and support plan (etc) was necessary.

This was raised on behalf of MB which HHJ Parry addresses in her Judgment (with reference to the Care and Support (Independent Advocacy Support) (Number 2) Regulations 2014) and emphasised that the order would record ‘the Local Authority’s willingness and indeed, in my view, obligation to consider this ongoing additional support for MB in the decisions that he will now be making on his own behalf’.

Although set out in a recital (which is positive for reference as to the ‘reasonableness’ of future actions) this ultimately relates to a primary issue that the powers of the court do not extend to decisions compelling parties to provide services for P (N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22, Baroness Hale, paragraph 29).

 

 

Emma Sutton was instructed by Rebecca Evan-Williams and Amy Rees-Roberts (Partner) of CJCH Solicitors (Cardiff) on behalf of MB

Claire Reid is a professional RPR and Project Lead for Training in Mind

CJCH Solicitors – Finalist for Cardiff Life Awards

The Cardiff Life Awards committee made the announcement this afternoon of their finalists across the 18 categories in their award lineup. CJCH Solicitors is proudly nominated as a finalist in the category of Legal and Financial, which is sponsored by FOR Cardiff.

It is an honour to be nominated, and we wish all of the nominees the best of luck for the ceremony on the 15th of March.

 

More information on the event from the Cardiff Life Awards team here.