In a 2021 analysis, Statistics Canada found that more than 91% of Canadian survey respondents used the Internet in the preceding three months, a figure that rose to between 97% and 99.6% for respondents aged 15–49. A smaller, but still sizable, percentage of those same respondents said that they “regularly” used social media. Despite its promise of near-limitless connectivity, the analysis also highlighted some of the problems respondents associated with social media, such as loss of sleep, lower physical activity, and negative emotions (e.g., anxiety and depression).[1]
Practitioners of labour and employment law are likely familiar with another issue associated with social media use: a willingness by parties to settlement agreements to “over-share” or publicly post on social media about their agreements. Though this problem is not confined to labour and employment law practitioners, they may feel it more acutely given the frequency with which disputes in this area of law are settled and the common use of confidentiality, non-disclosure, and similar terms in settlement agreements. However, the question remains: what should be done when a party to a settlement agreement breaches it by posting on social media?
The following review of two recent, non-judicial decisions sets out how counsel can respond when a settlement agreement has been breached by a party posting about it on social media. More than that, however, reading “between the lines” of these cases also offers practitioners guidance on how they can mitigate the risks posed by social media for settlement agreements their clients enter into.
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