With the advent of the social media, a new set of woes has arisen for both the Courts and social media users alike. Recent statistics have indicated that on any given day, an average of just over one billion people make use of the growing social media site – impact on business cannot be denied or avoided.
Social media in and out of the workplace
Despite best efforts of employers to curtail social media usage in the workplace during working hours, such as implementing internet usage and cellphone usage policies, there is little to be done about usage by employees after hours. Recently, there has been an influx of requests from employers to charge employees for defamatory statements made on social media sites regarding the employer directly. In these instances it is often trite to charge the employee for actions detrimental to the interests of their employers, as where an employee has open access to their page and the employer is made aware of the posts they can take action.
In two recent CCMA matters, Sedick and Another v Krisray (Pty) Ltd and Fredericks v Jo Borkett Fashions, employees were dismissed as a result of derogatory or defamatory statements made on social media about their employer. In a United Kingdom case, an employer was held vicariously liable for sexual harassment which took place when employees of the company, whilst at work and during office hours, posted a status on a fellow employees page without his permission.
When can liability be claimed?
A recent judgment of our courts in Isparta v Richter and Another, it was found that an individual can be held liable for being tagged in a Facebook post and failing to un-tag themselves. Furthermore, the judgment elaborated that merely sharing or liking a Facebook post is sufficient to constitute defamation.
The matter of trust
A fiduciary duty is owed by all employees to their employers. Employees should not post defamatory remarks about their employers, colleagues, co-workers or clients on social media as this may reflect on the employer and result in a negative impact on the employment relationship. This fiduciary duty extends to liking or sharing Facebook posts which contain defamatory statements. Most people tend to feel that the individual constitutional rights to freedom of expression and privacy are the only consideration when operating on social media.
What must employees do?
Should an employee wish to protect their privacy on social media, they should do so by ensuring that their personal privacy settings are adjusted accordingly. Many employees are in the habit of making their cellular contact details public. A distasteful profile picture or status posted in anger may lead to disciplinary action being taken against an employee where defamation can be proved.
Personal messages and Facebook posts have often been utilized as evidence in disciplinary proceedings. Actions detrimental to the interest of the employer may not be the only remedy available to employers whose employees make use of social media sites as employees can be sanctioned for neglect of duty where posts are made during working hours. It is evident that companies need to educate their employees on the serious consequences that the cyber realm can have on their employment by means of policies and counselling, where necessary.
Currently there exists no specific legislation dealing with social media in South Africa and there is ample room for the field to grow. Though labour and social media may be different branches of the law, they still form part of the same tree, nonetheless.
ABOUT THE AUTHOR
Rebecca obtained her LLB degree from the Nelson Mandela Metropolitan University in 2014. She holds a certificate from the Project for Conflict Resolution Development in Refugee rights and Asylum seeker Law. During her studies she worked as a Research Assistant for the Law Faculty. She completed a year of her articles at a private law firm, specializing in Conveyancing and Commercial Litigation and is presently obtaining her certification from the Legal Education and Development School, based at the Nelson Mandela Metropolitan University. She is currently employed as a SEESA Labour Legal Assistant.