social media

social media

Defamation

“Recently one of my employees posted a number of defamatory comments via her various social media platforms regarding some of her colleagues. I have already addressed the matter with her individually, but would like to prevent issues like this cropping up in the future and also protect my business. Most of my employees are on various social media sites and my business also has various social media accounts. Is there anything I can do?”

The benefits of social media cannot be disputed. The rise of social media has afforded the man on the street a public platform and the opportunity to stay connected and engage with others around the world in ways never anticipated before. An increasing amount of people are utilising social media platforms for both personal and professional purposes. Facebook, Twitter, Instagram, LinkedIn and Google+ have become standard ways in which information is communicated effectively and immediately. This has made many companies realise the need to take their businesses online, both in an effort to keep up with the times and to attract a wider pool of customers by promoting their businesses online, enhancing their brand visibility and using social media to gauge and improve their customer satisfaction.

But careless use of social media has become a prominent topic in the news recently. Despite the many advantages of this new digital age in which social networking has become the norm, the law has yet to develop effective mechanisms to address issues and mitigate the risks involved with the downsides of social media use. It is therefore imperative that businesses and employees remain well versed on the dangers associated with irresponsible social media use and the accompanying reputational harm that may be caused. In the age of social media, where material can go viral in a matter of minutes, it is crucial for employers to set out clear policy guidelines on acceptable social media use and the repercussions of stepping out of line. This is where a social media policy comes in.

A social media policy can be described as a corporate code of conduct which provides clear parameters for what is considered acceptable conduct on social media sites and what behaviour will not be tolerated. Ideally the policy should also highlight the consequences for breaching the company`s social media policy and have effective enforcement mechanisms in place to encourage compliance therewith. This will also help the employer to justify disciplinary action when the employee steps out of line.

Fact is, employers may face brand damage, reputational harm and suffer consequential loss of business from unsavoury posts or comments made on their business accounts or by employees of the business on their personal accounts. The ease by which a thoughtless comment or emotionally-fuelled post can bring an employer into disrepute and destroy client relationships is a reality of social media, and one which may cause irreparable harm if left unchecked. However, employers need to strike a balance between respecting their employee`s privacy and protecting their business interests. A social media policy can therefore be an effective means of managing employees’ conduct by limiting personal social media use during working hours, making sure that employees understand the risks associated with misusing social media and that they know what is expected of them. Such a policy should also clearly define what can be considered as libellous in terms of the company’s image in the general market place, and the consequences of such statements.

In a company`s social media policy, employers should therefore distinguish between, and cover both, employees` personal social media use (during and after work hours) as well as employees` use of social media for business purposes.

It is also important to understand that a company still needs a social media policy notwithstanding the fact that the business might not have its own social media accounts. As the majority of employees are engaging on social media platforms, their actions may cause harm to their employers even when the employer has no social media presence. Employers may be held liable for posts or comments made by employees on their own personal social media pages. For example, in terms of the Employment Equity Act, employers may be held liable for acts of unfair discrimination (which includes harassment) committed by their employees, unless it can be shown that the employer took reasonable steps to prevent contraventions of the aforementioned Act.

Employers should not underestimate the significance of establishing a sound social media policy in our current digital age. Having a social media policy that is applied consistently and communicated to employees will go a long way towards protecting your company`s brand and reputation as well as managing your company`s liability.

social media

Social Media and the Law

Defamation

Social media platforms such as Facebook, Twitter and YouTube have become an integral part of our everyday lives and have an important role to play in our social environment and help us keep in touch with others and stay informed of events around the world. Yet despite many of the benefits of social media platforms, these platforms also create opportunity for abuse and often bring out the worst in people, often without thought as to the consequences of their action.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.

Defamation

Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation.

Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him thereon.

In another case a woman was awarded R40,000 in damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook. The judge found that although the former husband was not the author of the postings, he was tagged in and knew about them and allowed his name to be coupled with that of his new wife thus creating liability jointly with the author of the postings.

Hate Speech

Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Dismissal

Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heel of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) have dealt with several of these cases where the dismissal was found to be fair based on the evidence garnered from the social media sites.

Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticising management, criticising the employer, employees using social media to convey internal matters of the business to former employees, etc.

Take note

What should you take note of when using social media to avoid legal or disciplinary action arising from your conduct on these social platforms?

The most common defence against defamation is that the publication was true and in the public interest. Make sure about your facts before posting anything and ensure that you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.
Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:
Keep posts legal, ethical and respectful.
Do not engage in online activities which could harm the reputation of the company.
Do not disclose any confidential or business information of the company.
Do not discuss colleagues, managers or information pertaining to the company.
A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn’t consider posting it on social media.