The use of social media has become an inherent part of how society communicates. These platforms enable individuals to share and network. However, they are also open to abuse. This complicates employment relations and, in turn, employment law.
This is exacerbated by the current status quo in South Africa, where there is no specific law that governs the use of social media. Employers are faced with the risk of employees not considering or understanding the consequences of their posts and how they reflect back on the company they work for.
Irresponsible, shaming posts may constitute an invasion of privacy, cyber-bullying and even hate speech.
If, for example, an employee of a company posts a video clip of someone driving recklessly, they can be assumed to have filmed the clip while driving themselves, thus making them equally guilty of negligent driving. In this example, the employer may be held liable for any harm caused as a result of the conduct, especially if the employee was involved in an accident as a result.
While an employee may tweet something that is intended as a joke, it may not be construed that way. Justine Sacco, a PR executive for a large corporation in the US tweeted, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” This allegedly satirical remark resulted in global outrage, death threats and pressure on her employer to fire her immediately.
In the UK’s Twitter Joke Trial UK of 2012, an offensive tweet, which resulted in the arrest, prosecution and conviction of Paul Chambers was, “Crap. Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky-high!”
Chambers’ conviction was ultimately overturned on appeal, but this case illustrates that any post, even one intended as a joke, may have far reaching consequences. In this case, these consequences were not just felt by Chambers. The Crown Prosecution Services faced public uproar and was accused of wasting public funds.
As a result of this case, the most senior prosecutor in England and Wales, Keir Starmer, issued guidelines on how posts on social media platforms should be dealt with, stating, “Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted, not only by prosecutors, but also by others including the police, the courts and service provides.”
Until South Africa implements its on legal guidelines on social media use, employers may use the following principles as a guideline:
- The impact of social media on the Constitutional rights to dignity, privacy and freedom of expression;
- The risks that defamatory or harassing statements may result in vicarious liability for employers;
- The risk of work place harassment and cyber-bullying and the impact of this conduct on the work environment; and
- What conduct may justify disciplinary action and even dismissal.
- That breaches of fiduciary duties and, even possible insider trading, may flow from seemingly innocuous posts on social media is also worthy of reflection.
The most obvious starting point in considering the impact of social media in the workplace is the Constitutional rights to dignity, privacy and freedom of expression, as “the Bill of Rights is the cornerstone of democracy in South Africa … [and] enshrines the rights of all people in our country.”
Dignity is an essential value that informs the interpretation of all other rights. There is a close link between dignity, privacy and free expression and these three rights often serve to strengthen one another.
The right to privacy fosters human dignity and is recognised as falling within the concept of dignitas. A breach of privacy could occur either by way of an unlawful intrusion upon a person’s personal privacy, or by way of an unlawful disclosure of private facts. This right includes protection against the dissemination and use of personal information, which includes the views or opinions of another person about the affected person (via the Protection of Personal Information Act). This is one of the reasons why ‘naming and shaming’ people on Facebook is problematic, as this imposes on an intrinsic right to privacy.
The right to dignity and privacy work harmoniously with each other. The use of social media becomes complicated when we discuss the Constitutional right to freedom of expression. While linked to dignity in the context of South Africa’s history and democratic development, it assumes a new meaning within the context of social media.
In a recent case (Braithwaite vs McKenzie 2015), involving defamation on social media, Judge Mahendra Chetty said, “In today’s world the most effective, efficient and immediate way of conveying one’s ideas and thoughts is via the internet. At the same time, the internet reaches out to millions of people instantaneously. The possibility of defamatory postings on the internet would therefore pose a significant risk to reputational integrity of individuals.”
Social media, unlike print media, is published in real time, often without editing, filtering or any consideration of whether the statement is appropriate. Freedom of expression is not unfettered and must be interpreted in the light of other fundamental rights, especially the right to dignity. This means that free expression is not a superior right in South Africa. Judge Kate O’Regan emphasized this, saying, “With us, the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression … What is clear though and must be stated, is that freedom of expressions does not enjoy superior status in our law.” (In Le Roux and others vs Dey 2011)
Social media, while inherently social, is not the same as having a chat with a close friend. Once information, especially that of a salacious nature, is published online, it can be captured and shared, causing far-reaching reputational damage, for the individual and their employers.
Therefore, “those who make postings about others on social media would be well advised to remove such posting immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being “social” is all about.” (Willis J: Herholdt v Wills)