In the wake of ArenaNet's sudden and unreasonably harsh sacking of Jessica Price and Peter Fries, many game workers in Australia are wondering: what are my rights when it comes to social media?
In this newsletter we hope to give a brief overview of how employees are expected to behave online and what to expect in this situation.
This information is not a substitute for personalised advice. If you are in trouble at work, join a union NOW and get personalised advice from an organiser or industrial officer who can assess your individual circumstances.
There is no right to free speech
It is important to say at the outset that you do not have the right to free speech in Australia
. Unlike the USA, which enshrines this right in law, Australia does not have any legal protections for speech. What Australia has is an "implied freedom of political communication," which is much more limited, vague, and not really comparable.
However, even in the case of countries like the USA, the right to free speech did not save the jobs of Price and Friers, because employment legislation in Washington State, where ArenaNet is based, allows for "at-will employment"
If you don’t know what "at-will employment" is, just imagine that it is short for "your boss can fire you at will," and you won’t be far wrong.
So it is already clear that examining the rights to freedom of speech, or lack thereof, are not really useful for assessing what you can and can’t say online. We need to consider the laws surrounding your employment.
Yes, you can be sacked for what you say and do online
Australian law does not explicitly recognise "personal time" or "private time" as distinct from "at work time".
By default, your social media behaviour is considered private activity. However, this is not a solid legal distinction. Furthermore, it is very easy for employers to explicitly bridge the gap, as we will explain below, or for you to bridge the gap by promoting your relationship to your employer.
While you may believe that social media is "your time" and part of your "private life," Australia's unfair dismissal laws generally do not. You cannot rely on disclaimers such as "opinions are my own," or "these tweets do not represent my employer," or anything like that, to save your job when it comes to a hearing at the Fair Work Commission.
Your individual circumstances will need to be assessed and you should never assume you are safe because your account was locked or because your bio includes a disclaimer.
It does not matter if your account is locked, or your post was set to friends-only, or anything like that. This will not protect you against a dismissal.
In the eyes of the law, it is very easy for your boss to make a good and strong case that your online behaviour reflected badly on their company, and thus they were entitled to discipline or sack you. Australia's unfair dismissal laws heavily favour employers, because they are broken.
You have some limited protections, but they’re trivial for your employer to get around
Because your social media time is by default
considered private unless otherwise stated, you can broadly expect some latitude – unless your employer decides otherwise.
If your employer makes you sign a social media code of conduct, a social media policy, or any other document which governs how you behave online, this gap is bridged and that limited protection is instantly removed.
For your employer to remove your online freedom, it is quite literally as simple as them asking you to sign a policy document governing your social media behaviour.
There is no legislation which covers what they can put in that policy document, and it does not need to be approved by anyone. They can put anything they like in these policies, and in the past, companies like the Commonwealth Bank have tried on some truly heinous policies
Yes, your employer can sack you for refusing to sign a social media policy. It is a reasonable direction, in the eyes of the law, to ask you to sign it. Refusing would be disobeying a lawful direction and thus grounds for dismissal.
If you are sacked for your behaviour on social media and you have never signed a social media policy
, you may
be entitled to contest the dismissal, as it was unreasonable to expect you to be bound by a code of conduct you never read or agreed to.
There are several successful examples of this in recent years - all of which immediately resulted in the companies developing social media policies and forcing their employees to sign them.
If this is the situation you find yourself in, get help immediately as you will not be able to run this case on your own without assistance.
This is not a watertight defence
If your online behaviour is serious enough, your employer may accuse you of "serious misconduct" and sack you.
Engaging in serious misconduct overrules the limited protections available to people who are not bound by social media policies. In this case, the company's argument is "this person's behaviour was so outrageous that we had no choice but to sack them."
Because of our broken laws, the Fair Work Commission will almost always side with the employer in this scenario.
Examples of serious misconduct would include things like hate speech, abuse, doxxing and so on.
How to behave online
Clearly the social media landscape is fraught with risk for workers.
It is unreasonable to expect that you will simply abandon social media altogether – although from a legal point of view, that is certainly the safest option.
Here are some steps you can take to protect yourself:
Always seek professional help from your union.
- Join your union. You don't need to wait for a union to come out and say "we support game workers" - you can join a union right now, because many unions already have overlapping coverage with game work. Your best choices are the Media, Entertainment and Arts Alliance or Professionals Australia.
- Remove employer information from your bio. Having that information there will make it much, much easier for your employer to build a case alleging that your behaviour reflects on them. Don’t bother with disclaimers, they are legally meaningless.
- Be very careful about adding supervisors or managers as friends. Even if you like them, there are hundreds of cases where people in hiring and firing positions have used social media to access what was intended to be “private” information.
- Lock your account for an added layer of protection. It is not a defensible strategy in court but it will make it easier for you to operate online.
- Try to take angry or emotionally-charged discussions offline or to private channels. We understand that this is not always possible, and it’s unfair to expect that social media discussions should be nothing but sterile corporate messaging. However, our employment laws are not fair. If there is a risk that you’ll say something you’ll regret, take it offline.
- Do post to any social media over a network the company or your employer controls. Network traffic may be monitored, and any posting done - even on breaks - may be used as a mark against you.
- Use your union to air grievances or complaints. If you speak up on your own, you expose yourself to risk. Use the collective power of your union to bring those issues to light and enable you to continue doing what you do without worrying about being personally targeted.
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If you’re a game worker in Australia and unionising is on your mind, join us! Fill out the application form here
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About GWU Australia
Game Workers Unite Australia is looking to build a union for game developers in Australia and work in tandem with all branches of Game Workers Unite to bring about effective change in the industry.
We seek reform in wages, diminishing crunch, creating transparency in contracts, workplace safety, and bringing about laws to ensure game workers of all kinds recieve their legal workplace benefits.
We are run exclusively by workers (non-employers), but we actively encourage employers, academics, and others to engage in the community and help support the organization's direct action efforts both materially and through their visibility.
We support students, streamers, pro players, public relations, marketing, ads, sales, designers, writers, programmers, artists, producers, QA, localisers, audio, community management, office support, journalists, and more. If you work in games, you are one of us.