Pebbles Hooper and the fine line between serious misconduct and social media

The Harmful Digital Communications Act may not have made a crime out of Pebbles Hooper's Twitter brain explosion, but it ...
Peter Meecham

The Harmful Digital Communications Act may not have made a crime out of Pebbles Hooper's Twitter brain explosion, but it highlights the issue of cyber bullying.

OPINION: 

The opportunities for employees to harm their employers' reputations through social media are almost infinite.

Employers have struggled to keep up with the fast moving Internet feast and in maintaining a clear line between what an employee can do in their own time and the impact on their employment.

Last week, socialite and gossip columnist Pebbles Hooper resigned from her role as co-editor of the Herald on Sunday's Spy gossip pages following public backlash in relation to one of her tweets: "I'll get major slack [sic] for this but leaving a car running inside a closed garage while you're [sic] kids are in the house is natural selection".

This was in reference to the deaths of Ashburton mother Cindy George and her three children after they were overcome by exhaust fumes from their car which had been left running in the garage to prevent a flat battery.

The Herald on Sunday quickly distanced itself, with the editor making it clear that the views expressed were not shared by the Herald on Sunday, and that they were treating the tweet "extremely seriously".

Hooper has now deleted her Twitter account.

Whether Hooper resigned of her own accord or was pushed is not clear, but the Herald on Sunday would have had arguable grounds to dismiss in any event.

The relevant questions for an employer in considering dismissal for conduct outside the workplace include whether there is a link between an employee's conduct and their job and whether the conduct has harmed the employer's reputation.

If that is established, an employer may have grounds for dismissal for serious misconduct.

Hooper's controversial style is part of the reason she had a media presence in the first place.

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The Herald on Sunday would have to take that into account in assessing whether Hooper's conduct was compatible with her role.

However, she clearly overstepped the line with her comments about a tragic event, and it is likely that the Herald on Sunday would have suffered a backlash had it continued to engage her.

It should go without saying that anything premised with an acknowledgement that "I'll get nailed for this" should cause one to think twice.

Somewhat ironically, the Harmful Digital Communications Act became law last Monday, days after Hooper's tweet.

It aims to strike the right balance between freedom of expression and the need to protect individuals from cyber bullying.

A person commits the new criminal offence of causing harm by posting a digital communication if it is done with the intention of causing harm to a victim, it would cause harm to a reasonable person in the victim's position, and it actually causes such harm.

Harm means serious emotional distress. The penalties are hefty – for a person, imprisonment for up to 2 years or a fine of up to $50,000.

Would Hooper have committed an offence under the new law? The answer is possibly not – the legislation is designed to capture communications aimed at an individual which harms that person, not a generally offensive comment that is posted electronically.

One could argue that Hooper's words did target the Ashburton victims, but a deceased person will not qualify as a victim under the Act.

The Act will have a range of implications for employers. If an employee is charged with an offence in relation to a harmful digital communication, the employer will need to tread carefully in addressing the implications of the charges in a disciplinary context.

The risk of criminal repercussions will open up the opportunity for employees to claim "the right to silence" which in turn could interfere with an employer's disciplinary investigation. 

The new regime will also have potentially wider consequences in the workplace, particularly in the context of a bullying situation.

Where a harmful digital communication is held on a system under the employer's control, such as an internal messaging system or intranet, the employer may be required to take urgent steps to remove the harmful content, within 48 hours, in line with the complaints process set out in the Act.

Failure to do so could leave the employer in the gun for criminal or civil penalties itself.

The Harmful Digital Communications Act has been a long time in the coming.

It may not have made a crime out of Hooper's brain explosion, but it certainly highlights the issue of cyber bullying and puts protections in place which affect us all both at home and in the workplace.

Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.
www.dundasstreet.co.nz

 - Stuff

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