Freedom of speech or harmful social media communication?

Employment | Print Article

June 2017

Social media has become a part of everyday life. Problems arise when employees or ex-employees add their workmates as social media ‘friends’, and post disparaging comments about their employer and/or workmates or breach confidentiality.

Bidvest New Zealand Ltd v Vivian [2015] NZERA Wellington 101

In this case, Mr Vivian posted that he had ‘got paid a lot of money’ (from Bidvest New Zealand Ltd) even though he was going to quit next week. He also posted disparaging comments about other workmates, his former manager and the company. But, Bidvest and Mr Vivian had previously entered into a full and final Record of Settlement Agreement after a mediation. The settlement acknowledged Mr Vivian had resigned and would be paid in lieu of notice. The terms of settlement included a hurt and humiliation compensation payment of $4,500 under section 123(1)(c)(i) of the Employment Relations Act 2000 (‘ERA 2000’). They also included the following confidentiality provision:

These terms of settlement and all matters discussed as part of this settlement shall remain, so far as the law allows, confidential to the parties.

 A few months later, Mr Vivian sent the offending Facebook message to a former colleague. After messaging the former colleague, word of the confidential settlement started spreading through the office. Bidvest took legal action to the Employment Relations Authority, alleging Mr Vivian had breached the confidentiality provisions of the Settlement Agreement. Bidvest’s main concern was that the Facebook message had made its staff aware an employee had received money to leave his employment. They believed this might lead to other employees making claims for monetary payments to leave. Bidvest had argued that although Mr Vivian had not specified the amount he received from Bidvest, his description of ‘a lot of money’ was a hint to the compensatory payment of $4,500 that he had received. Mr Vivian’s explanation was that he was only referring to his holiday pay and the pay out of a credit in his staff account. He also said the words on Facebook were emotive, not factual and blamed Bidvest for ‘planned and carefully orchestrated actions… to force a negative reaction’.

The Authority found Mr Vivian’s explanation to be ‘fanciful and speculative’. While Mr Vivian did not quantify the amount he had been paid, his Facebook statement made it clear that it was substantial. The Authority held that Mr Vivian had clearly and deliberately breached the confidentiality provisions of the Settlement Agreement and it imposed a penalty of $3,000 to be paid by Mr Vivian to Bidvest as punishment of his wrongdoing.

Aggrieved Employee redress?

While Bidvest obtained redress under the ERA 2000, unfortunately employees have no such right of redress under the ERA 2000 against other employees or ex-employees who post disparaging comments about them on Facebook or other social media sites. This is because employee to employee workplace relationships is not a qualifying relationship under the ERA 2000.

While a defamation claim in the District Court is an option in serious cases, it is time-consuming and expensive. By the time a defamation case gets to court, the damage has already been done. A quicker means of address might be a complaint to NetSafe or seeking redress under the Harmful Digital Communications Act 2015.

Harmful Digital Communications Act 2015 (‘HDCA 2015’)

This legislation came into effect on 2 July 2015. It arose in response to public outcry about the Roastbusters, a group of young men boasting about their sexual encounters naming the women concerned.

The purpose of this legislation is to deter, prevent and mitigate harm caused to individuals by digital communications and provide victims of harmful digital communications with a quick and efficient means of redress. Digital communications include private messages as well as publicly shared posts. This legislation provides civil and criminal remedies for harmful digital communications.

Proceedings under the HDCA 2015 can only be commenced if NetSafe has first received a complaint about the communication and had a reasonable opportunity to assess the complaint and decide what action (if any) to take.

If NetSafe is unable, for whatever reason, to provide effective redress if a digital communication constitutes or poses a threat to the safety of an individual, section 11 provides that an affected individual, a parent or guardian on behalf of the affected individual, the professional leader of a registered school or his or her delegate, and/or the Police, may bring proceedings under this Act.

Section 22 of the HDCA 2015 states that a person will commit a criminal offence if:

  • the person posts a digital communication with the intention that it cause harm to a victim; and
  • posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
  • posting the communication causes harm to the victim.

Harm is defined in the HDCA 2015 as ‘serious emotional distress’. Judge Doherty in R v Iyer [2016] NZDC 23957 noted that:

…from the inclusion of the word ‘serious’ that the intended harm must be more than trivial. Being merely upset or annoyed as a consequence of a digital communication would not be sufficient to invoke the sanction of criminal law.

 The Judge concluded ‘it is clear that the definition of serious emotional distress is designed to balance two competing concerns: the serious effects of calculated emotional harm, and the importance of maintaining free speech’.

In determining whether a post would cause harm, the District Court may take into account any factors it considers relevant including the extremity of the language used, the age and the characteristics of the victim, whether the digital communication was anonymous, whether the digital communication was repeated, the extent of circulation of the digital communication, whether the information is true or false, and the context in which the digital communication appears.

The District Court must not grant an application unless it is satisfied that there has been a threatened serious breach, a serious breach, or a repeated breach of one or more communication principles, and the breach has caused or is likely to cause harm to an individual. A person who commits an offence under the HDCA 2015 is liable on conviction to a significant penalty of imprisonment for up to two years or a fine of up to $50,000 for a person or $200,000 for a body corporate.


Employers should re-examine workplace policies to incorporate provisions of the HDCA 2015. This includes updating policies and processes relating to bullying and harassment, misconduct and disciplinary action and use of social media.

Employees and ex-employees who are tempted to post defamatory or disparaging comments on Facebook or other social media about their managers, colleagues, or former colleagues should be mindful that there are now consequences. They risk NetSafe involvement and worse, in serious cases they could face civil or criminal liability under the HDCA 2015.