Big Brother is watching you: a snapshot analysis of the employee’s right to freedom of expression and right to privacy versus the employer’s right to protect against reputational and brand damage.

“Your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about six adults) go jolling and your ex’s B drunk, 50 yr old girl friend ends up sleeping with your daughter cause he doesn't want his girlfriend sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?1

This was the controversial Facebook message posted by the respondent in which she levelled a series of allegations against the applicant, the father of her five-year-old child, portraying him as an irresponsible and negligent parent to their child. The court had to decide whether the respondent’s actions could be said to constitute defamation and, as such, whether the court could grant the requests sought by the applicant in his notice of motion which included, amongst others, an order compelling the respondent to refrain from posting, publishing and distributing defamatory statements about the applicant. The importance of this case and many other cases like this one is twofold: it brings to the fore the importance of monitoring and regulating one’s conduct and interactions on social media and in turn highlights the serious reality and implications of the potential damage that an abuse of social media can occasion for both the employer and the employee.

In light of increased social media usage due to its relative ease, efficiency and effectiveness, a more contentious issue that has recently come to the forefront is whether employers have the right to police the conduct of employees on social media, bearing in mind the serious implications on the employer in terms of not only potential vicarious liability but reputational and brand damage as a result of the reckless conduct of its employees online. The issue of policing the conduct of employees on social media may however have far-reaching consequences in terms of the Constitution 2 especially when an employee’s social media conduct is not related to their employment and the online activities of an employee happen to take place outside working hours.

The Commissioner in Cantamessa v. Edcon Group3 addressed the issue of social media conduct of employees outside working hours with special emphasis on the importance of and need for a thorough social media policy that clearly sets out the employer’s stance on the activities of its employees online. In casu the social media policy of the employer at the time of the Commission of Conciliation, Mediation and Arbitration proceedings was not extensive and in fact failed to mention social media incidents that took place outside working hours and away from the workplace. As such, the Commissioner found that the summary dismissal of the employee was not reasonable and thus could not be upheld. It is important to think about and consider the potential outcome of the proceedings had the employer’s social media policy been thorough enough to allow for employees to be held accountable for their conduct on social media both inside and outside the workplace from a Constitutional point of view especially considering the fact that such a policy has the potential to stifle and unduly restrict the Constitutional right not only to freedom of expression but to privacy as well.

Section 14 (d) of the Constitution affords all South African citizens the right not to have the privacy of their communications impinged upon whilst section 16 of the Constitution affords citizens the right to freedom of expression. It is important to note however that, in terms of the latter right, section 16, internal limitations under section 16(2) exist which play an important role in regulating the manner in which the right may be used such that it does not cause undue harm and prejudice to others.

The possibility of employers monitoring and even going as far as limiting the interactions of their employees on social media does however raise concerns regarding the privacy and freedom of expression of employees and in turn also bears the possible risk of a conflict between the fundamental rights to privacy and freedom of expression as contained in the Constitution and the employer’s relative “right” to police the social media conduct of its employees in order to protect against potential claims resulting in both reputational and brand damage.

Policing and taking employees to task (and even going as far as issuing a dismissal) for their social media activity warrants a clear limitation of two fundamental rights as afforded by the Constitution, i.e: the right to freedom of expression and the right to privacy.4 Once such a limitation is established, the employer will essentially be tasked with having to justify the limitation of these core rights through the application of section 36(1) of the Constitution.

In terms of section 36(1), the employer will have to show that monitoring the social media conduct of its employees can be said to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The employer may in turn also be tasked with having to justify the need for such a limitation of fundamental rights by showing that less restrictive means to achieve the purpose of averting vicarious liability at the hands of an employee’s social media conduct as well as reputational and brand damage do not exist.

In terms of Labour Law, an employee can be dismissed if their conduct is of such a serious nature that it makes a continued employment relationship intolerable. This said, an argument may be put forward by the employer holding that the need to protect itself against claims by third parties due to employees potentially committing misconduct online and as such damaging both its brand and reputation justifies its need to monitor and even limit the social media conduct of its employees inside and outside the workplace. Argument can in turn be made that an employee who causes the reputational damage of their employer as a result of their contentious social media activities meets the requirements for dismissal for gross misconduct as it would be an easy case for the employer to make that as a result of the employee’s controversial conduct online, the employee has brought the employer’s brand and reputation into disrepute and as a result, a continued employment relationship is now intolerable.

In his novel 1984, George Orwell makes reference to a fictional character in authority that polices and invades the privacy of all citizens in the state of Oceania, Big Brother. Given that every citizen was under the constant surveillance and control of Big Brother, it’s not difficult to draw an analogy between Big Brother’s conduct in Oceania and the employer’s conduct now in policing the social media conduct of its employees both inside and outside the workplace. Although employees can “easily” protect their online communications and social media conduct behind the veil of the right to freedom of expression and privacy, these rights are not absolute and the employer therefore has the right to monitor your conduct both inside and outside the workplace. So next time you’re in the mood to post a scathing message about your former partner on social media remember that “Big Brother is watching you".