Lights, camera, lawsuit: Risks of creating social media content at work

If you’re not on social media, the chances are the person sitting next to you is. Almost 80 percent of Australians are active on social media every day, making it one of the most impactful and effective communication tools for early childhood educators and their services. Despite its popularity, social media also carries significant legal and child safety risks. 

 

With a significantly younger workforce and families keen to see photos of their child’s daily activities, the early childhood education and care (ECEC) sector is embracing social media in record numbers. Every day, ECEC services are posting photos and videos on their public accounts, showcasing children doing arts and crafts or even learning the latest TikTok dance crazes. Others share videos offering virtual tours of the centre’s playroom or a glimpse into the day-to-day life of an early educator.  

 

While this content may seem harmless on the surface, what happens if it goes viral or attracts negative comments towards the employees, the children or the ECEC service? Or, perhaps in the most extreme of cases, what may happen if photos or videos are picked up by artificial intelligence (AI) scraping tools, databanks, or even worse, end up on the dark web? 

 

The legal and safety implications can be significant for ECEC settings, their staff and the children they protect. While the risks may not be immediately obvious,recently, the world’s largest social media company, Meta, told an Australian Senate Inquiry the company’s artificial intelligence tools have been scraping text, photos and videos posted to public social media accounts. 

 

The company admitted it had undertaken a mass collection of data and images without the knowledge of its social media users or any legal requirement to obtain consent. 

 

Key considerations for ECEC settings

 

Employers planning to involve staff or children in their centre’s social media strategy or marketing should keep the following points in mind:

 

• Limit the risks: Be mindful of the legal and safety ramifications of featuring employees and children in social media content or filming in the service. Protect confidential information visible on computer screens, whiteboards, in displays or on name badges. It is important to establish clear procedures for obtaining explicit consent to safeguard employee and children’s privacy and confidential information through photography and videography consent forms

 

• clearly define employees’ social media duties: If an employer is seeking to feature its employees in social media content, this should be reflected in the employee’s position description. If staff members are unaware that creating or appearing in social media content is part of their formal duties, employers should be prepared for the possibility that some staff may refuse to participate

 

• ensure the National Model Code and guidelines for taking images or videos in early childhood education centres are followed: The government has developed critical new guidelines to ensure a safe culture when taking, sharing, and storing images or videos of children in early childhood centres. The Code recommends using only work-issued devices to take and store images of children. Any personal item or device capable of taking pictures should not be in the possession of a person while working directly with children.

 

Employers should also consider the following questions:

 

• How do you create a culture of online safety at your centre?

• What activities, or areas of your centre, should be off-limits for photos and images?

• How do you manage staff’s personal use of social media?

• How do you obtain consent for a child’s image to be taken and published on social media? 

• What safeguards are in place to protect the sharing and storage of those images including privacy and safety considerations?

 

Can an early learning centre direct an employee to participate in a video for social media?

 

Out of the blue? Probably not. The general view is that employees are only obliged to follow directions from their employer that are both lawful and reasonable. However, an employer’s direction for an employee to participate in and be filmed for a social media video can be lawful and reasonable if it meets certain criteria.

 

Firstly, the request must be lawful. This means it should not require the employee to do anything illegal, or to perform duties outside the scope of their employment. 

 

Employment agreements which contain a broad obligation to “perform such other duties as the employer may reasonably direct from time to time”, which many do, is likely to support a finding that asking an employee to be in a social media video may be considered a lawful direction. 

 

Secondly, the request must be reasonable. Reasonableness is assessed based on the specific circumstances, including the nature of the employee’s role, established workplace customs and the terms of relevant instruments like modern awards and enterprise agreements. An ECEC service does not need to prove that the request is the best or most appropriate course of action, only that it is reasonable in the given context.

 

When it comes to social media, it is important for services to consider the impact on an employee’s privacy and personal life. If creating social media content is a regular part of their job duties, this can support the reasonableness of the request. However, if these activities fall outside of their usual responsibilities, the request may be viewed as less reasonable.

 

What risks should ECEC leaders consider before posting content that features employees?

 

The idea of a TikTok video going viral is a dream come true for marketing teams. However, the reality can be much harsher if the video attracts negative attention – and when content is posted by the company’s account, the employer may ultimately be held accountable for any backlash.

 

What if an employee is filming themselves at work for their own social media account?

 

Whether such a request is lawful and reasonable will depend on the specifics of the content and the context. For instance, the Fair Work Act and state discrimination laws prohibit adverse action based on an employee’s religious or political beliefs. If the content touches on these topics, employers should be mindful that their actions comply with these laws.

 

When an employee films content for their personal social media at work, it can create challenges for the image of the employer. Employers may be able to issue a warning or ask the employee to remove the post(s).

 

Importantly, the National Model Code also has strong guidance for centres not to use personal devices to photograph or record children. 

 

Provided that centres follow the National Model Code guidelines and have permission from parents, TikTok content can be a fun and creative way for staff and children to share their daily activities with parents and the broader community. 

 

More information

 

If you have any questions or need assistance with developing or reviewing your centre’s social media and workplace policies, please get in touch with Holding Redlich State Managing Partner Rachel Drew or Special Counsel Rose Dimitrious.