"In NSW, the Government Sector Employment Act 2013 establishes an ethical framework for a merit-based, apolitical and professional public sector that is capable of implementing the decisions of the Government of the day – regardless of the personal political beliefs of public servants. All NSW government sector employees are required to comply with the Code of Ethics and Conduct for NSW government sector employees which implements the ethical framework – and similar conduct regimes exist in other jurisdictions.

"These conduct obligations must be front-of-mind for public servants who maintain a social media presence. It is not always clear where reasonable participation in public discourse ends, and potential misconduct begins," Ms Boyd said. 

A popular example of social media in government agencies going wrong is that of barrister and former public servant Michaela Banerji. In 2019, she lost a landmark free speech case in the High Court after it was found tweets she posted under a different handle were critical of the government and breached the code of conduct. 

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Ms Banerji argued that she had been unlawfully fired in 2013 after an internal investigation looked into the Twitter account. While the Administrative Appeals Tribunal did originally find her sacking had impeded Ms Banerji’s right to freedom of political communication, the High Court unanimously ruled against her. 

To protect clients from the unfavourable tweets of their employees, Ms Boyd said it is important that legal teams are assisting their agencies in creating a social media policy that not only establishes good structure for how the agency itself uses social media, but directs individuals on using the platforms in a way that does not compromise the reputation of the agency or the public service altogether. 

Apart from including this in a code of conduct and ensuring employees are across these guidelines from their induction period, Ms Boyd said government lawyers or lawyers with high-profile clients should also be considering its workplace culture. 

“All employers must ensure that their employees are aware of the exercising discretion when making comments on social media. Build an inclusive and speak-up culture so that employees feel comfortable engaging in policy debate internally. If people feel they can raise concerns, they are less likely to vent on social media in a way that damages their reputation and the integrity of public service,” Ms Boyd said. 

SenateSHJ partner Craig Badings agreed, telling the conference that clients can have the best social media policies in place, “but if the culture of the organisation is not one where your employers are prepared to share [information with their employees], that’s often where we see it leads to a problem”. 

To prevent the reputational risks of social media from becoming an issue, Mr Badings said it was critical that legal teams work alongside communications and marketing teams to determine whether a project could be ill-received.

He pointed to Prime Minister Scott Morrison’s bushfire video in January 2020 as an example of social media projects gone awry. In the video, Mr Morrison authorised a government message that it was deploying 3,000 army reservists to manage the ongoing crisis. While ordinarily a good message, the upbeat music and its chosen language were blasted for being “tone-deaf” and a “boast” of the government's response.

“Context is everything,” Mr Badings said. “Legal and communication teams need to work together and do it early in the piece. It’s no use if legal teams are coming in at the end when we have a defamation case. That’s too late. It needs to happen early.” 

Along with the rise of social media has been the inevitable increase in defamation claims, Banki Haddock Fiora partner Marina Olsen said. Like any new technological platform, she said the bounds of defamation law – and the responses of the courts to establish precedents – are being stretched and tested by social media. 

“Twitter by its nature has attracted the most defamation claims along with the most vocal and opinionated people. It is probably the forum where employers are most likely to be dragged in, especially in the media. One of the risks for an organisation that flows on from that conduct is the need to indemnify employees,” she said. 

Indemnifying employees for defamation action was recently seen in a matter brought by Andrew Laming against ABC journalist Louise Milligan over allegations that he “upskirted” a woman when he took a photo of her. Ms Milligan had to pay almost $80,000 in damages, but this cost was taken over by the ABC. 

“Employers generally indemnify employees when the post is during the course of their employment. In a journalism context, that is because people are encouraged as part of their employment to be active on social media. The line between professional and personal is not always clear on there,” Ms Olsen explained. 

She added that it is not just written words that can be defamatory. Most recently, the emoji language was brought into a courtroom when high-profile criminal lawyer Zali Burrows accused another lawyer of using the “zipper-face face” emoji to allege that she had been referred to the disciplinary board of the state’s Law Society. 

Ms Burrows is also a key example for plaintiffs alleging defamation action against several parties caught up in the publication. In an ongoing matter, Ms Burrows has named Fairfax Media, the author of an article, the Sydney Morning Herald editor, and two journalists who shared the article online in her defamation action. 

“Every person who intentionally assists in the publication of defamatory material is liable,” Ms Olsen said, but added: “There are defences to that which protects a number of people who get caught up in the publication web.”