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Social media policy Q&A: South Korea

2021.07.13

South Korea-specific information concerning the key legal and commercial issues to be considered when drafting a social media policy for use internationally.<br />
<br />
See also<i><a href="https://uk.practicallaw.thomsonreuters.com/w-016-3433?originationContext=document&vr=3.0&rs=PLUK1.0&transitionType=DocumentItem&contextData=(sc.Default)&firstPage=true"><span style="color:#2980b9;"> Standard document, Social media policy: International</span></a></i>, with country-specific drafting notes.<br />
<br />
<br />
<strong>Applicability</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">1. In your jurisdiction, is a policy such as Standard document, Social media policy: International usually:
<ul>
	<li>Put in place by employers?</li>
	<li>Included in a general IT and communications systems policy or as a free-standing policy?</li>
</ul>
</div>
<br />
Employers can regulate the use of social media, but it is unusual for employers to set a social media policy as a separate company policy. Instead, it is more common to include social media matters in a company's disciplinary policy or IT and communications policy.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">2. What are the terms in a policy called in your jurisdiction? For example, clauses, paragraphs, articles.</div>
<br />
The terms in a policy are usually referred to as "chapters", "articles" or "clauses".<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">3. Does <i><i>Standard document, Social media policy: International</i></i> help to minimise risk for employers by defining what is acceptable and unacceptable uses of social media in the context of the employment relationship?</div>
<br />
Employers can reduce the potential for disputes by giving employees detailed information on the acceptable and unacceptable uses of social media. It is advisable for employers to clearly specify the misuse of social media as a disciplinary matter in a disciplinary policy for the purposes of taking disciplinary action.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">4. Is it possible in your jurisdiction for <i>Standard document, Social media policy: International</i> to apply to an employee's social media use, including outside of office hours?</div>
<br />
It is impossible for employers to prohibit employees from using social media outside of work hours because this would be an excessive breach of privacy. However, it is possible to prohibit employees from:
<ul>
	<li>Uploading a post on social media under the company's name.</li>
	<li>Defaming the company's reputation through social media.</li>
	<li>Any other action on social media that damages the company.</li>
</ul>
<br />
<br />
<strong>Enforceability</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">5. Is Standard document, Social media policy: International enforceable against employees? How?</div>
<br />
Employers can enforce social media policies such as Standard document, Social media policy: International, and a company's rules of employment generally set out such policies. Breaches of social media policies must be listed as a disciplinary matter under the rules of employment. The employer's rules of employment are established by an employer, and lay out rules at the workplace in relation to matters such as pay, disciplinary measures, and so on, that apply to employees overall (<i>Supreme Court Decision 2001Da63599, Decided February 12, 2004</i>).<br />
<br />
An employer who regularly employs ten or more employees must prepare rules of employment and report to the Minister of Employment and Labour under Article 93 of the Labour Standards Act.<br />
<br />
If employers adopt a social media policy with a new disciplinary matter (that did not exist before), they must follow the procedure for alteration of rules of employment against the employees' interest under Article 94(1) of the Labour Standards Act, which requires consent from either the labour union to which the majority of employees belong or majority of employees.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">6. Can an employer take disciplinary action for breach of the social media policy (as set out in Standard document, Social media policy: International: clauses 2.3 and <a href="https://uk.practicallaw.thomsonreuters.com/w-016-3433?originationContext=document&vr=3.0&rs=PLUK1.0&transitionType=DocumentItem&contextData=(sc.Default)&firstPage=true#co_anchor_a801210">9</a>)?</div>
<br />
An employer can take disciplinary action for breach of a social media policy such as Standard document, Social media policy: International, but the breach must be listed as a disciplinary matter or construed as one under the rules of employment.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">7. What disciplinary procedures should the employer follow where the employee is in breach of Standard document, Social media policy: International?</div>
<br />
It is only necessary to follow a set procedure for disciplinary action when this is established through a collective bargaining agreement or the rules of employment. However, the cause of the disciplinary measure still needs to be justifiable.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">8. Is the employer required to carry out an investigation before taking any action against an employee in respect of Standard document, Social media policy: International?</div>
<br />
Unless the disciplinary procedure rules under a collective bargaining agreement or the rules of employment state otherwise, employers do not have to carry out an investigation before taking action against an employee in response to a violation of a social media policy. However, employers still have the burden of proof when taking a disciplinary action against employees.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">9. What disciplinary sanctions may be brought against the employee for breach of the social media policy? Can an employee be dismissed (as set out in Standard document, Social media policy: International: clause 2.3)?</div>
<br />
When taking disciplinary action, an employer is obliged to give due consideration to the specific policy that the employee violated, the consequences of the violation, and so on. Therefore, a social media policy or the rules of employment cannot determine beforehand what disciplinary sanctions can be brought against a given employee as set out in Standard document, Social media policy: International: clause 2.3. It is difficult for the employer to dismiss an employee unless the violation caused significant loss.<br />
<br />
An employer must give at least 30 days' notice before dismissal. If not, the employer must pay an amount equal to 30-days' ordinary wages (<i>Article 26 of the Labour Standards Act</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">10. Canan employee be required to provide their personal passwords and log in details for social media accounts as set out in Standard document, Social media policy: International: clause 9.1?</div>
<br />
Employers cannot require employees to provide their personal passwords without their explicit consent, and a general clause in a social media policy would not be sufficient for this. Employers must get consent from employees when a need for such consent arises. Even where consent is given, this can be an issue if the employee later claims that such consent was made as a consequence of the employer's coercion.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">11. Can an employer draw negative inferences about the employee if they do not provide their<br />
passwords and log in details when requested to do so by their employer?</div>
<br />
An employer cannot draw negative inferences about the employee even if they do not provide their passwords and log-in details. If an employer wishes to take disciplinary action it needs clear evidence to do so, and the employer bears the burden of proof.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">12. What potential criminal offences could result from the misuse of social media in your jurisdiction?</div>
<br />
Article 44-7 of the Act on Promotion of Information and Communications Network Utilisation and Information Protection makes the circulation of unlawful information a criminal offence. The Act prohibits the circulation through an information and communications network of information with content that:
<ul>
	<li>Is obscene, whether distributed, sold, rented or displayed openly in the form of code, words, sounds, images or moving pictures.</li>
	<li>Defames other persons by divulging a fact or false information, openly and with intent to disparage that person's reputation.</li>
	<li>Arouses fear or apprehension by repeatedly reaching other persons, whether in the form of code, words, sounds, images or moving pictures.</li>
	<li>Compromises, destroys, alters or falsifies an information and communications system, data, program or similar, or that interferes with the operation of such system, data, program or similar without a justifiable ground.</li>
	<li>Amounts to a media product harmful to youths under the Youth Protection Act and that is provided for profit without fulfilling the duties and obligations under the relevant statutes and regulations, including the duty to verify the subject's age, and the labelling duty.</li>
</ul>
<br />
Article 136 of the Copyright Act imposes criminal penalties on persons who infringe on an author's economic rights or other property rights protected under the Act through the reproduction, performance, public transmission, exhibition, distribution, rental or production of derivative works. Such persons can be punished by imprisonment with labour of up to five years or by a fine up to KRW50 million.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">13. What potential civil claims could be brought against an employee from the misuse of social media in your jurisdiction?</div>
<br />
Potential civil claims against an employee for misuse of social media can include:
<ul>
	<li>Claims in tort for defamation, under Article 750 of the Civil Act.</li>
	<li>Contractual breaches of an applicable confidentiality clause.</li>
</ul>
 <br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">14. Can an employer require an employee to remove any social media content that it considers to constitute a breach of the social media policy (as set out in Standard document, Social media policy: International: clause 9.2)?</div>
<br />
An employer can require an employee to remove social media content where this is specified by the social media policy, as set out in Standard document, Social media policy: International: clause 9.2, if the posting is outside the employee's privacy and incurs damage to the company.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">15. Can an employer take disciplinary action if an employee fails to remove any social media content that the employer considered to constitute a breach of the social media policy (as set out in Standard document, Social media policy: International: clause 9.2)?</div>
<br />
It is possible to take disciplinary action for a violation of company policy if this is stated as a disciplinary matter under the rules of employment. Standard document, Social media policy: International: clause 9.2 is sufficient to indicate that an employee failing to remove social media content that the employer considers to constitute a breach of the policy is a disciplinary matter for these purposes, if the employer follows the legal procedure for the establishment and alteration of the rules of employment under Article 93 and 94 of the Labour Standards Act.<br />
<br />
<br />
<strong>Contractual status</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">16. Is it advisable for the social media policy not to form part of an employee's contract of employment in your jurisdiction so that an employer can make changes as it wishes without breaching the contract of employment with its employees (as set out in Standard document, Social media policy: International: clause 1.4)?</div>
<br />
It is advisable for Standard document, Social media policy: International to form part of an employee's contract. If an employer puts such a policy in the rules of employment instead of individual contracts, it is necessary to obtain consent from the trade union composed of the majority of the employees in the business or workplace concerned (if there is such a trade union), or the consent of the majority of the employees if there is no trade union (<i>Article 94(1), Labour Standards Act</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">17. If Standard document, Social media policy: International does not form part of the employee's contract of employment, could there be an implied contractual duty on the employee to comply with this policy?</div>
<br />
It is common to state in an employment contract that the employee is obliged to follow company policies. There is an implied contractual duty to do so, but there is no guarantee that this will be effective. Instead, it is advisable to make employees agree to a comprehensive statement such as that contained in Standard document, Social media policy: International.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">18. Could an employee be in breach of contract if they are in breach of the social media policy, even where it is stated that the policy does not form part of the employee's contract of employment as set out in Standard document, Social media policy: International: clause 1.4?</div>
<br />
Even where a social media policy is not explicitly laid out in the employment contract, the employee has an implied contractual duty to follow the rules of employment if these are effectively established, revised and made publicly available to employees. An employer can establish the rules of employment following the procedure as outlined in Article 93 of the Labour Standards Act, and make it publicly available to employees to make it effective (<i>see Question 5</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">19. If Standard document, Social media policy: International is non-contractual could this reduce its legal force in your jurisdiction?</div>
<br />
Even where a social media policy is not explicitly laid out in contract, an employee has an implied contractual duty to follow the rules of employment if these are effectively established, revised and made publicly available to employees.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">20. Can the social media policy be amended at any time by an employer in your jurisdiction (as set out in Standard document, Social media policy: International: clause 1.4)? If not, what steps should the employer take when it needs to amend this policy?</div>
<br />
An employer cannot unilaterally revise the rules of employment. If an employer intends to prepare or alter the rules of employment it must consult the trade union composed of the majority of the employees in the business or workplace concerned (if there is one) or otherwise consult the majority of the employees. The consent of the union or the majority of the employees is required to amend the rules of employment unfavourably to employees (<i>Article 94(1), Labour Standards Act</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">21. Can the employer prohibit its employees from the uses of social media as set out in Standard document, Social media policy: International: clauses 4.1 to 4.4 inclusive?</div>
<br />
It is possible to prohibit any social media posting that could harm the company's reputation, or that is made under the company name without authorisation, as set out in Standard document, Social media policy: International: clauses 4.1 to 4.4 inclusive.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">22. Can an employer prohibit its employees from adding business contacts made during the course of their employment to personal social networking accounts (as set out in the first option in Standard document, Social media policy: International: clause 4.5)?</div>
<br />
An employer can prohibit its employees from adding business contacts made during the course of their employment to personal social networking accounts (as set out in Standard document, Social media policy: International: clause 4.5), since this could influence the company's reputation.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">23. Can all the contact details of business contacts made by employees during their employment be the employer's confidential information in your jurisdiction (as set out in the second option of Standard document, Social media policy: International: clause 4.5)?</div>
<br />
There is little established case law on what information can be considered to be confidential information. However, there are numerous cases on whether business contacts can be considered to be trade secrets. According to the case law, an employer's trade secrets must be technical or business information that the employer has made a considerable effort to keep confidential. Therefore, if the employer did not make a considerable effort to keep and manage the information as confidential, it will not be regarded as a trade secret of the employer (<i>Incheon District Court 2019Gahap62238, 5 February 2021</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">24. If not, how can an employer protect against such information being used by employees to compete with the employer or solicit its customers/clients?</div>
<br />
An employer can protect its business contact information by having an information policy. To be protected as "trade secret" under the Unfair Competition Prevention and Trade Secret Protection Act, the information must objectively be kept and managed as confidential information. This means that, for example, the employer should have:
<ul>
	<li>Given notice that the information is a trade secret.</li>
	<li>Given only limited authorised personnel to access the information.</li>
	<li>Limited methods of access to the information.</li>
	<li>Required personnel who access the information to assume responsibility for non-disclosure.</li>
</ul>
<br />
Non-compete contractual clauses and other restrictive covenants are also commonly included in employment contracts.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">25. Can an employer place an obligation on employees to provide copies of all business contacts and for employees to delete any such information from their personal social networking accounts on termination of their employment (as set out in the second option of Standard document, Social media policy: International: clause 4.5)?</div>
<br />
As business contacts are a company's business information, an employer can through prior notice of a social media policy require employees to:
<ul>
	<li>Provide copies of all business contacts.</li>
	<li>Delete any such information on request or on termination (as set out in the second option of Standard document, Social media policy: International: clause 4.5).</li>
	<li>Distinguish business contacts and personal contacts.</li>
</ul>
 <br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">26. If an employee is required to speak on behalf of the employer, can the employer impose certain requirements and restrictions on the employee as referred to in Standard document, Social media policy: International: clause 5.1?</div>
<br />
The employer can impose requirements and restrictions as referred to in Standard document, Social media policy: International: clause 5.1 where the employee is using social media to represent the company.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">27. When an employee discloses an affiliation with their employer on their personal social media, can an employer include provision in the policy for the employee to state that their views do not represent the views of the employer as set out in Standard document, Social media policy: International: clause 6.3?</div>
<br />
As set out in Standard document, Social media policy: International: clause 6.3, the employer can require employees to state that their opinions are personal and do not represent the employer's official opinion.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">28. Can an employer include provision in the policy for an employee to refrain from posting anything until the employee has discussed it with their manager (as set out in Standard document, Social media policy: International: clause 6.4)?</div>
<br />
An employer can include provision in the policy for an employee to refrain from posting anything until the employee has discussed it with their manager, as set out in Standard document, Social media policy: International: clause 6.4. However, the employer can only give a recommendation, and cannot require the employee to stop posting anything until they have discussed it with their manager.<br />
<br />
<br />
<strong>Monitoring</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">29. In your jurisdiction, can internet postings and social media use by employees be monitored by employers?</div>
<br />
There is no established rule on the monitoring of internet postings and social media use by employers. However, monitoring of private activity on social media without consent is likely to be an infringement of privacy.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">30. On what basis can an employer legally monitor its employees' social media use?</div>
<br />
There is no established rule on the monitoring of internet postings and social media use by employers. However, since monitoring information that is not publicly posted by employees without consent is likely to be an infringement of privacy, it is advisable that the employer monitor only social media postings under the company name or identity.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">31. Can an employer monitor employees using the employer's IT resources and communications systems to ensure that its rules and policies are being complied with and for legitimate business purposes as set out in Standard document, Social media policy: International: clause 7.1?</div>
<br />
It would be inadvisable to rely solely on a clause such as Standard document, Social media policy: International: clause 7.1 in a company social media policy when monitoring employees using the employer's IT resources and communications systems. Employers should receive comprehensive consent for monitoring from the employee in the employment contract, and further consent from the employee when any suspicious activity happens, since the undisclosed monitoring of emails and internet use can be an infringement against privacy and telecommunications secrecy.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">32. Are there any legal requirements or limitations that an employer needs to be aware of when monitoring its employees' social media use in your jurisdiction?</div>
<br />
The Constitution protects citizens against the infringement of their privacy and privacy of correspondence (Article 17 and Article 18).<br />
<br />
The employer should also be aware of the following provisions concerning personal information and privacy of communications:
<ul>
	<li>A personal information controller must collect the minimum personal information necessary to attain the purpose when collecting personal information (<i>Article 16(1), Personal Information Protection Act</i>).</li>
	<li>No person must censor any mail, wiretap any telecommunications, provide communication confirmation data, or record or listen to any conversation between others that is not made public (<i>Article 3(1), Protection of Communications Secrets Act</i>).</li>
	<li>No one must mutilate another person's information processed, stored, or transmitted through an information and communications network, nor must they infringe, misappropriate, or divulge another person's secret (<i>Article 49, Act on Promotion of Information and Communications Network Utilisation and Information Protection, etc</i>).</li>
</ul>
<br />
When it is believed that a security threat has occurred and there are sufficient grounds to do so, it is advisable to carry out this kind of investigation only if there is a comprehensive agreement in the employment contract allowing for this and after receiving a separate agreement with the employee on the specific case.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">33. If consent is required for such monitoring, is the consent provided by the employee in Standard document, Social media policy: International: clause 7.1 sufficient?</div>
<br />
There are no established court cases related to the monitoring of internet postings and social media use by employers, but it is likely that a general policy such as Standard document, Social media policy: International: clause 7.1 will not be sufficient to allow for such monitoring. If possible, the employer should receive further individual consents from employees when a problem arises.<br />
<br />
<br />
<strong>Recruitment</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">34. In the recruitment process, can employers use internet searches to perform due diligence on candidates as set out in Standard document, Social media policy: International: clause 8?</div>
<br />
There are no restrictions on using internet searches for background checks on job applicants, as set out in Standard document, Social media policy: International: clause 8.<br />
<br />
However, Article 4-3 of the Fair Hiring Procedure Act, an employer cannot gather information in the recruitment process on the candidate's:
<ul>
	<li>Physical condition such as appearance, height, and weight.</li>
	<li>Hometown, marital status and wealth.</li>
	<li>Education, occupation and the wealth of their lineal ascendants, lineal descendants and siblings.</li>
</ul>
 <br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">35. Can a recruiting employer lawfully rely on information gained from a prospective employee's available social media activity?</div>
<br />
Since information the prospective employee provided on social media can be inaccurate, it is not advisable to make a decision solely based on such information. The employer should request such information from the candidate officially and directly.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">36. Is there a risk that an unsuccessful job applicant could claim discrimination where an employer has accessed their available social media activity during the recruitment process?</div>
<br />
It is likely to be difficult for candidates to claim legally in such circumstances, since the employer has only referenced information that the applicant posted publicly. However, it is generally preferable in any case to check critical information with the applicant directly, rather than making a decision based on social media postings.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">37. Can an employer prevent its staff from providing references for other staff on social media and professional networking sites (as set out in Standard document, Social media policy: International: clause 2.2)?</div>
<br />
An employer can include in its social media policy a clause such as Standard document, Social media policy: International: clause 2.2 preventing its staff from providing references for other staff on social media and professional networking sites. However, unless such references affect the employer's reputation in a negative way, the employer cannot take any disciplinary action or put any restriction on such a reference being given.<br />
<br />
<br />
<strong>Employee's rights</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">38. What rights do employees have in your jurisdiction in relation to their personal social media use during employment, for example, a right to privacy, a right to freedom of expression?</div>
<br />
Employees have the right to:
<ul>
	<li>Privacy. Under Article 17 of the Constitution, the privacy of no citizen can be infringed.</li>
	<li>Freedom of expression. Under Article 21(1) of the Constitution, all citizens enjoy freedom of speech and the press, and freedom of assembly and association.</li>
</ul>
 <br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">39. What claims could an employee bring against an employer for breach of such rights?</div>
<br />
Claims for damages are possible for infringements of the rights to privacy and freedom of expression.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">40. Do the laws in your jurisdiction address potential harassment or bullying between employees via personal social media?</div>
<br />
Article 76-2 of the Labour Standards Act prohibits workplace harassment, which includes online bullying through internal messenger systems, social media and so on (<i>p. 10, The Ministry of Labour and Employment, "Manual for Determination, Prevention, and Response to Workplace Harassments"</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">41. What obligations would be placed on employers where there is harassment or bullying between employees via personal social media?</div>
<br />
Employers must include prevention measures and possible responses to workplace harassment in the rules of employment. In addition, according to case law, employers have an obligation to respond to workplace harassment to protect their employees (<i>The Supreme Court Decision 95Da6823 Decided April 23, 1996</i>).<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">42. How do these obligations differ where the harassment or bullying is being conducted via personal social media or do the same obligations apply to employers regardless of the bullying or harassment taking place via personal social media or in person?</div>
<br />
Workplace harassment regulations also apply when the harassment takes place through personal social media. However, if it was impossible for the employer to have been aware of such harassment before or after it took place, it would not be employer's responsibility.<br />
<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">43. Can an employer be vicariously liable for bullying and harassment between employees via personal social media in your jurisdiction?</div>
<br />
The Labour Standards Act does not impose any penalty in relation to workplace harassment between employees. However, an employer can be criminally charged for dismissing employees or treating employees unfavourably where they report the occurrence of workplace harassment, victimisation and so on (<i>Article 109(1)</i>).<br />
<br />
The courts have recognised an employer's liability for damages based on a violation of its responsibility to protect its employees. Employers' liability under Article 756 of the Civil Act is also possible if it is found that the employer did not meet its obligation to supervise an assailant employee.<br />
<br />
<br />
<strong>Execution and other formalities</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">44. Are there any formalities or language requirements that must be adhered to in relation to the creation, introduction or execution of Standard document, Social media policy: International?</div>
<br />
<br />
<strong>Formalities</strong><br />
<br />
There are no specific formalities required by law for the creation of this kind of policy. However, it should be known to the employees and therefore notified to them through appropriate means. An employer can make company policies as part of the employee's contract by referencing to the policies generally in the contract.<br />
<br />
As Standard document, Social media policy: International would be considered to be one of rules of employment, it must be notified to employees to be effective under the Article 93 of the Labour Standards Act. When the employer alters the policy, and the alteration is not unfavourable to employees, the employer must hear opinion from the labour union composed of majority of employees or from the employee representatives. If the alteration is unfavourable to employees, the employer must obtain consent from the labour union composed of majority of employees, or from the employee representatives (<i>Article 94(1), Labour Standards Act</i>).<br />
<br />
<br />
<strong>Language requirements</strong><br />
<br />
There are no language requirements. However, a Korean version is advisable so that employees can better understand the policy and avoid violating it.<br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">45. Under what circumstances is consultation with or approval of a works council or trade union required for the social media policy (as set out in cStandard document, Social media policy: International:clause 1.3)?</div>
<br />
If an employer wants to change its social media policy, it must consult the trade union composed of the majority of the employees in the business or workplace concerned (if there is one) or otherwise consult the majority of the employees. The consent of the union or the majority of the employees is required to amend the rules of employment unfavourably to employees (<i>Article 94(1), Labour Standards Act</i>).<br />
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<br />
<strong>General</strong><br />
 
<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">46. Are any of the parts of Standard document, Social media policy: International not legally valid and enforceable or not standard practice in your jurisdiction?</div>
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In general, disciplinary action is permissible when the violation is listed as a disciplinary matter in the rules of employment, but a social media policy or the rules of employment cannot determine beforehand what disciplinary actions can be brought against a given employee. It is difficult for the employer to dismiss an employee unless the violation caused significant loss.<br />
<br />
While it is generally possible to monitor public social media postings, it would be inadvisable to rely solely on a clause such as Standard document, Social media policy: International: clause 7.1 in a company social media policy when monitoring employees using the employer's IT resources and communications systems. Employers should receive comprehensive consent for monitoring from the employee in the employment contract, and further consent from the employee when any suspicious activity happens, since the undisclosed monitoring of emails and internet use can be an infringement against privacy and telecommunications secrecy.<br />
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<div style="background:#eeeeee;border:1px solid #cccccc;padding:5px 10px;">47. Are there any other standard clauses that would be usual to see in a social media policy such as Standard document, Social media policy: International and/or that are standard practice to include in your jurisdiction?</div>
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It is unusual for an employer to have a separate social media policy in South Korea. Standard document, Social media policy: International contains the terms usually found in employers' IT and communications policies.

News IT and communications systems policy Q&A: South Korea 2021.07.13

KOREA LEGAL INSIGHT Korea’s Unique Statutory Post-Judgment Interest Regime and Implications on Arbitral Award Enforcement in Korea 2021.07.05

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Marc Kyuha BAEK
+82-2-6200-1937 khbaek@jipyong.com

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