With the explosion of social media, challenging obligations and responsibilities can be created. Employees can express themselves about literally anything, and some of these views could damage a company.
So, how to do deal with an employee who does something wrong on a social networking site?
The common law rules of defamation apply equally to all social network sites and electronic communication media. There are no special rules for social media or e-mail usage.
This policy provides guidance for employee use of social media, which should be broadly understood for purposes of this policy to include blogs, wikis, microblogs, message boards, chat rooms, electronic newsletters, online forums, social networking sites, and other sites and services that permit users to share information with others in a contemporaneous manner.
Procedures to follow as your guidelines
The following principles apply to professional use of social media on behalf of a company as well as personal use of social media when referencing to a company.
- Employees need to know and adhere to the Company’s Code of Conduct, Employee Handbook, and other company policies when using social media in reference to a company.
- The employees should be well aware of the effect their actions may have on their image, as well as the company’s image. The information that employees post or publish may be public information for a long time.
- A company has the right to observe content and information made available by employees through social media. Employees should use their best judgment in posting material that is neither inappropriate nor harmful to the company, its employees, or customers.
Some examples of prohibited social media conduct include posting commentary, content, or images that are defamatory, pornographic, proprietary, harassing, libellous, or that can create a hostile work environment.
Social media networks, blogs and other types of online content sometimes generate press and media attention or legal questions. Employees should refer these inquiries to authorized spokespersons.
If employees encounter a situation while using social media that threatens to become antagonistic, employees should disengage from the dialogue in a polite manner and seek the advice of a supervisor.
Employees should get appropriate permission before they refer to or post images of current or former employees, members, vendors or suppliers. Additionally, employees should get appropriate permission to use a third party’s copyrights, copyrighted material, trademarks, service marks or other intellectual property.
The use of social media should not interfere with employees’ responsibilities at a company.
The computer systems are to be used for business purposes only. When using any computer systems, the use of social media for business purposes is allowed i.e: Facebook, Twitter, Company blogs and LinkedIn, but personal use of social media networks or personal blogging of online content is discouraged and could result in disciplinary action.
Subject to applicable law, after‐hours online activity that violates the Company’s Code of Conduct or any other company policy may subject an employee to disciplinary action or termination.
If an employee publishes content after‐hours that involves work or subjects associated with work, a disclaimer should be used, such as this i.e: “The postings on this site are my own and may not represent the company’s positions, strategies or opinions.”
It is crucial that work related social media accounts are separate from personal accounts, if practical
Users with mischievous and negative agendas beware!
If, for example, a person unlawfully publishes something that could injure the reputation of another person, this is proven defamation as the right of any person to dignity or reputation is infringed.
The nature of social media can present problems if employees express negative opinions about a company.
Because of the public nature of social media sites, all the friends of an employee can view their posts and these friends can forward this message to their friends. Unfortunately, some of these friends may be clients, which is problematic:
A company’s reputation can be tainted and smeared by an aggrieved employee in no time whatsoever.
This is aggravated by the fact that social networks are forums for personal expression. This means material that employees post does not have the benefit of being edited before going live. The potential damage to your business can be of calamitous proportions – to say the least!
What stance do the courts take to social media?
In a recent High Court judgment in Johannesburg, the learned judge confirmed the existing legal position regarding the infringement of privacy, defamation and damages. In this case, the complainant sued the defendant on the basis of the following Facebook posting during February 2012:
“I wonder too what happened to the person who I counted as best friend for 15 years, and how this behaviour is justified. Remember, I see the broken-hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons not to have to take responsibility for the consequences of your own behaviour? But mostly, I wonder whether, when you look in the mirror in your drunken testosterone haze, if you still see a man?”
The court agreed with the complainant that his right to privacy was infringed upon and that the posting constituted a defamatory statement. The test for defamation was whether “a reasonable person of ordinary intelligence might reasonably understand the words concerned as defamatory”.
The court ruled in favour of the complainant irrespective of the truthfulness of the posting.
Always be very careful what you say!
If you ever find yourself at a disciplinary hearing and CCMA proceedings, including all oral and documentary evidence, take care not to make any defamatory remarks because such proceedings are not privileged. You must take care to avoid unnecessarily harsh words.
What should your social media policy contain?
Your social media policy should tell your employees what you consider as responsible behaviour on social media, what they may or may not post and what the consequences will be for employees who contravene your social media policies.
4 Acts of cyber misconduct you must include in your social media policy
- “Cyber loafing” and the abuse of the employer’s resources
Prohibit your employees from using your resources, e.g. computers, telephones, etc., for their own purposes during or outside company time. In Latchmish v Billiton Aluminium, an employee was found guilty of misconduct for repeatedly accessing pornographic sites and therefore abusing the employment relationship.
- Creating disharmony and disseminating offensive or abusive material
When an employee circulates information that is racist, defamatory, sexist or pornographic, this constitutes gross misconduct. Racist comments are not only offensive but these create disharmony among employees.
In the case of Edgars v CCMA, the Labour Court accepted that sending a racist joke to a colleague was grounds for dismissal.
- Derogatory statements
An employee who posts derogatory and offensive messages about a business may be found guilty of bringing the company into disrepute, which could lead to disciplinary action or an action for defamation.
This type of misconduct occurred in FOSAWU v Gold Reef City Casino where an employee was suspended for misconduct after he posted a status on Facebook that he was dismissed for being gay.
- Breach of trust
In the case of E Booyse v Veilile Tinto Cape Inc, an employee was dismissed for posting a photograph of herself attending a competitor’s function. This might also occur where employees post information about activities at one location when they were actually supposed to be somewhere else, e.g. an employee calls in sick but actually goes on holiday.
ABOUT THE AUTHOR
Dennis Marais obtained his LLB degree from North-West University, where after he finished his course in Law School in the University of Pretoria in 2010. He was then admitted as an attorney in 2012. Dennis joined SEESA Labour in 2013 as a legal advisor at our Pretoria office.