How should employers manage content creators in the workplace?

Employers have been facing the challenges of employees using social media in the workplace for a number of years. However, the relatively new trend of staff using the workplace for content creation for their own digital platforms can be particularly difficult for employers to navigate.

What is content creation and why is it a concern for organisations?

Content creators are individuals who produce media content for digital distribution, through platforms such as TikTok and Instagram. They seek to create content that is entertaining, informative, or captivating in some way.

2024 saw a trend that seems set to continue – the workplace being filmed as part of the content creator’s normal day. The content is often captioned “A Day in the Life” and will feature the creator going about their day at their place of work and in various parts of the work buildings or spaces.

The consequences of such filming can present serious risks for an organisation, both in terms of its data, information and reputation, and its people. Consequently, organisations will need to manage employee behaviour through a combination of contractual provisions, clear policies, staff training, technical measures, the creation of a culture of trust and accountability. Employers should also ensure they implement an effective enforcement strategy. So, what should each of these measures entail?

Managing content creators through contractual provisions

The contract of employment can stipulate the employee’s working hours, work location(s), and the behaviour expected of the employee. Employers often make clear that individuals are required not to undertake other work or personal tasks at work (save to deal with unexpected issues or emergencies) and have whole-time working provisions. It is also a good idea to make clear that the employer’s resources and property (including branding etc.) for personal use is not permitted.

Using the contract could also be an opportunity for the organisation to state that content creation must not be filmed or made in the workplace or during working hours, that the employee must not do anything that brings the organisation into disrepute, and that unauthorised recording or sharing of sensitive information could lead to disciplinary action. These provisions should also be mirrored in social media policies.

There will also be implied terms in a contract of employment, that is, obligations which are owed, which are not expressly written but which the law sees as necessary for a fair, practical and workable employer-employee relationship. Implied terms include the duty of mutual trust and confidence (i.e. not acting in a way that undermines the other party’s trust and confidence), the employer’s duty of care to provide a safe working environment (including regarding the physical and mental health of all employees), the duty to act in good faith (i.e. not engaging in behaviour that may damage the other party’s reputation or operations), and duty of confidentiality (i.e. in relation to sensitive information, financial information and data).

Supplementary terms or  a separate agreement could be a non-disclosure or confidentiality agreement, which can be used to specifically address the recording or sharing of workplace content or information without express permission.

Managing social media use through data protection, mobile phone and social media policies

The organisation’s data protection policy will govern the use, monitoring and managing of data and should be considered in this context. It can set out clear guidelines for behaviour, expectations and responsibilities in relation to the collection, storage, usage, and sharing of personal or sensitive data and should address the privacy of others (staff and clients or customers). The policy can also outline how the activities of employees will be logged, monitored and audited, as a part of their accountability, together with the consequences of non-compliance, including potential disciplinary actions. This serves as a deterrent and ensures staff understand the seriousness of breaches or neglect in following the policy.

The organisation’s mobile devices (including any Bring Your Own Device)  policy should clearly outline when and where employees are prohibited from using mobile phones or other devices to film, photograph, or record. It should specify areas where recording is strictly forbidden, such as confidential meeting rooms and in meetings, production areas, or sensitive locations (such as design studios or laboratories). For clarity, it should define where mobile phones can be used, such as for business purposes or work-related tasks and voice calls (rather than videos or video calls), so that employees clearly understand the boundaries.

A well-defined social media policy is essential for setting rules for employee social media use in the workplace. The policy should clearly set out what will constitute acceptable and unacceptable behaviour: this should include specific details, such as whether the employee is permitted to reveal details of their job role or the identity of their organisation, having regard to their employer’s reputation, integrity, and values.

Managing content creation in the workplace through training and awareness

Organisations may want to consider providing staff training on the risks associated with filming in the workplace, especially in relation to intellectual property, trade secrets, customer data, and privacy laws (such the Data Protection Act 2018 and the UK GDPR). Employers should communicate clearly how the filming of content in the workplace without permission could lead to disciplinary action.

Technical measures to manage content creators

In certain areas of the workplace, organisations may be able to completely prevent or limit the use of mobile phones or recording devices. They may also be able to install phone jammers/blockers (subject to compliance with any legal considerations) or use certain apps that monitor phone activity to ensure compliance with workplace policies. If employees have company mobiles, the organisation can easily restrict those devices from taking photos or videos. In addition, certain workplace areas can be designated as restricted areas for mobile phones or devices or even require staff to lock such devices in personal lockers or leave with security.

Fostering an organisational culture to manage content creation

Employers should look to create a culture of trust and respect across the organisation, and ensure that this is implemented top-down and modelled by senior leaders. Employers should feel able to air any concerns they have about privacy or security.

Enforcing workplace policies and measures to manage content creation

Organisations should implement a system for checks and audits, to ensure compliance. A response strategy should also be in place detailing steps to be followed in the event of an employee’s breach of contract. Such strategy will include implementing any disciplinary measures as set out in the organisation’s disciplinary policy. It is important to ensure that standards of conduct are observed and action taken for breach: failure to do this may make it difficult to enforce the rules where previously an employer turned a “blind eye” and selective enforcement is likely to be deemed unfair.

A specialist lawyer can ensure that the key workplace contracts and policies are in place, and help organisations implement preventive measures and strategies so as to reduce occurrences of unauthorised filming in the workplace and safeguard organisational data and privacy.

If you have any questions or concerns about content creation in the workplace or employee behaviour generally, please contact Employment lawyer Audrey Williams.