Social Media Policies: Principles and Enforcement

Published on February 25, 2022

Overview

Social media use is abundant today, especially as COVID restrictions have moved much of our personal and professional lives online. Many sport organizations have found increased visibility and other benefits from a strong online presence however, missteps in communication using online platforms by employees, board members, coaches, and athletes can have significant negative implications. Issues may arise through improper content posted through official branded channels or on the personal accounts of any individuals associated with a sport organization.

This blog post sets out some of the basic components of social media policies and discusses how sport organizations can effectively apply these policies to help manage and mitigate risk.

Update

At Sport Law, we have long recommended that sport organizations include a stand-alone social media policy as part of good business practice. Having a specific policy focused on the challenges and risks associated with online communication helps to clarify the expectations for participants and potential consequences if there is a breach of these expectations. Currently, it is common practice for sport organizations to simply incorporate clauses about to social media within existing policies Code of Conduct. We believe this is insufficient to effectively deal with social media activity by employees and participants.

Back in 2014, Kevin Lawrie wrote a blog post about the proven value of a social media policy. As part of his research, Kevin scanned the websites of 59 National Sport Organizations (NSOs) and determined whether each NSO had a ‘good’ policy, a ‘decent’ policy, or no policy at all. In the 59 NSOs reviewed, only six had a social media policy published on their website – 53 did not.

Eight years later, Kevin did a similar analysis of the 63 Canadian NSOs and identified 19 NSOs with a strong social media policy published on their website, and another 10 organizations with a ‘decent’ policy. Interestingly, 34 NSOs did not have a separate social media published on their website.

While sport organizations can pursue complaints for inappropriate online activity under their Code of Conduct and general complaints procedures, having a policy that specifically addresses social media activity can strengthen the position of a sport organization if disciplinary action must be taken.

Important Considerations

Policy established by a sport organization is an expression of the values of the organization, outlining the expectations for acceptable conduct for all participants in the sport, from athletes to coaches to volunteers.

When developing or revising a social media policy, sport organizations must consider activities by employees on branded accounts controlled by the organization. Careful attention must also be given to off-duty posts by participants on their personal accounts which may or may not be directly linked to, or associated with, the sport organization.

Internal social media policies should clearly state who has access to any branded accounts and any vetting process that is required before posts are issued on behalf of the sport organization. An outline of acceptable activity for social media managers such as sharing or liking content should also be developed. Certain types of information should never be shared online, including confidential information related to the medical history of athletes, or privileged information such as budgetary projections or competition strategy.

Given that social media does not follow regular business hours, it is important that access to social media accounts is distributed to different members within the organization to allow for a rapid response if one is needed.

If personal opinions are expressed on branded accounts – which we suggest only be done in limited circumstances – sport organizations should clearly set out when disclaimers are to be used.  

It remains a surprise for some that organizations can take disciplinary action for posts by participants on their personal accounts. Generally, participants may not post material or comments that bring the sport organization into disrepute, particularly if there is a clear and close association between the participant and the organization. This can be a difficult line to walk, as the ability of participants to express their opinions must be balanced with the reputational concerns of sport organizations who may face backlash from other participants or sponsors because of inappropriate, or at least controversial, statements made online.

Allegations about issues such as maltreatment made through social media channels are particularly challenging to address. Such public statements may give rise to third party legal actions for defamation and cause immense conflict within a sport organization, as well as limiting the ability of the sport organization to investigate any concerns properly and fairly. 

Depending on the contractual arrangements between sponsors and sport organizations, posts promoting brands by participants which conflict with sponsorship agreements may also cause concerns.

Lastly, during international events, sport organizations must be aware of any restrictions imposed by the organizing committees or international federations regarding posts during the event and clearly communicate them to participants.

Social media policies should be directed at different audiences and clearly set out the expected standard of conduct – to guide both organizational posts as well as participant online activity.

Application of Social Media Policies

If an employee violates a social media policy related to the use of branded accounts, the sport organization has the right to pursue discipline for this conduct which may include revoking privileges, suspending the employee with or without pay, or even termination of employment for cause.

Discipline in these situations follows the standard procedure for addressing employee misconduct. As we mentioned above, having a clear social media policy strengthens the position of the sport organization in these circumstances, as the policy establishes the expectation of performance for the employee.

Educating employees on what is acceptable conduct is an important step in preventing incidents on social media.

The line of cases involving discipline for off-duty conduct predates the advent of social media. The decision of Millhaven Fibres Ltd. v. Oil, Chemical and Atomic Workers International Union, Local 9670 sets out the key requirements for organizations to impose discipline for off-duty conduct. Though Millhaven Fibres is most often applied in the unionized context, these factors are helpful guidelines to consider when responding to online activity.

If an employee or participant has committed at least one of the following actions, the sport organization may be justified in taking disciplinary action:

  • The conduct of the participant has or could harm the reputation of the sport organization;
  • A participant is unable to perform their job duties appropriately;
  • Other participants are refusing, are unable or are reluctant to work with the participant;
  • The participant’s behaviour is a serious breach of the Criminal Code; and/or
  • The participant’s conduct makes it difficult for the sport organization to effectively manage their activities or prevents the sport organization from functioning properly.

Various courts and arbitrators have used the fundamentals established in MillHaven Fibres and applied them in the context of social media activities. Many of the cases turn on the specific facts of the situation before the panel, but several general statements can be made:

  • Sport organizations do not have to prove that they have suffered significant harm before they can take disciplinary actions. It is sufficient for a sport organization to assess on a matter of common sense that there is the potential for significant harm to support disciplinary action.
  • Having a social media policy that is regularly updated is critical, as is educating participants on the terms of the policy and the expectation of the sport organization for online activities related or associated with the sport organization.
  • Where possible and appropriate, sport organizations should employ progressive measures for online missteps before taking disciplinary action such as a suspension or dismissal.
  • In assessing the facts of the situation, an objective rather than a subjective standard will be applied. This means a reasonable and well-informed person evaluating the situation must find that the organization was facing reputational harm because of the posts.

When faced with a situation involving potential discipline because of inappropriate social media activity, sport organizations must use their discretion to pursue a complaint carefully. A particularly challenging area is determining the appropriate response for off duty activity by participants on social media. The organization should determine whether an action qualifies as misconduct and whether this misconduct has harmed, or will likely harm, the sport organization’s interests, or reputation or it equates to maltreatment of anther participant. Exercising discretion and looking to educate rather than to impose punitive measures ought to be one of the first steps taken when managing these kinds of issues.

Areas of Consider

While a sport organization has the right to act when online statements may bring the organization into disrepute or violate Code of Conduct standards, not all situations are clear cut. Some potential issues include:

  • Advocacy – Athletes are increasingly using their platform to advocate for different political and social causes. Occasionally these causes or statements made in support of these causes may be controversial or perceived as controversial. Sport organizations should be prepared to address these statements. Having clearly defined organizational values set out in the Code of Conduct and social media policies – as opposed to a prescribed list of acceptable activities – gives participants the freedom to participate in online activities while being clear about the expectations of the sport organization. When faced with an online controversy, it is always best to ask for clarity offline rather than sending out a reactionary tweet.  
  • Sponsorship – Similarly, social media has expanded the ability of athletes to access sponsorship and promote different brands online. This gives rise to potential conflict between athlete and organizational sponsors. Sponsorship arrangements should be addressed in athlete agreements, with a view of being fair to all parties.
  • Fair comment/criticism – Social media policies provide helpful guidelines for acceptable conduct online and should not be used to restrict the ability of participants to freely comment and even criticize the activities of a sport organizations or incidents during competition. Again, identifying the core values of an organization and educating participants on acceptable conduct helps find an appropriate balance to foster an open and honest culture.

Key Takeaways

What happens online does not stay online – sport organizations must be prepared to address activity on social media. To avoid being caught off-guard, sport organizations should develop and implement policies for branded accounts and for online activity from the personal accounts of participants.

These policies should not be overly prescriptive. Instead, sport organizations must clearly set out expectations for conduct that reflect the organization’s core values rather than attempt to identify every type of possible prohibited activity.

When responding to concerning online activity, sport organizations need to evaluate the post(s) objectively and be mindful of balancing the interests of the sport organization with the rights of employees and participants to freely voice their opinions. Balanced and proportional discipline, coupled with ongoing campaign of education about appropriate online activity, is an effective way to respond to concerns while promoting a healthy and engaging online community.

For more support on how to develop your organization’s social media policy or assistance when addressing concerning online activity, please connect with Will Russell at wrussell@sportlaw.ca or Kevin Lawrie at klawrie@sportlaw.ca.

Thank you to Valerie Koch for her invaluable assistance in developing this post!

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