'Online Speech and the Workplace: Public Right, Private Regulation

A developing line of case law suggests there is little space for workers’ remarks on social media platforms even before discussion of employers’ proportionate responses . Workers are being disciplined (up to and including termination) for online remarks because employment contract clauses have vest ed employers with a unilate ral authority to assess workers’ online speech based on the expansive threshold of what may be embarrassing to or what may lower business reputation. While a legitimate concern itself, the singular focus on business reputation fosters a chilling effect at a time of unprecedented facilities for individual free speech. A comparison of United Kingdom and Canadian cases on social media in the workplace of fers an instructive contrast where, in Canada, there is greater scope for expression than in the UK. While the Canadian decisions le ad to fertile discussion of pressing social issues, they are not idealized . Rulings in both countries remain susceptible to further difficulties , such as the capacity for information technology to expose workers and employers alike to legal risk beyond the ‘work day’