An increasing number of people are engaging on social media for both personal and professional purposes. Combined with this is the ever increasing use of social media platforms by companies to promote their businesses. Using social media, both personally and professionally, has afforded people the opportunity to stay connected and engage with others around the world in a way that has never been possible before. The many benefits of social media are undoubted. However, this increasingly frequent use of social media has led to a number of legal battles, internationally and in South Africa, arising from inappropriate use or abuse. There have also been many examples, worldwide, of arrests for cybercrimes committed on social media and, of course, there has been an increase in the number of employees who have been dismissed for social media misconduct. It is likely that, in the months and years to come, these incidents of litigation, prosecution and dismissal will increase exponentially. It is therefore essential that employers take steps to protect their business and their employees if they wish to remain unscathed by the negatives associated with social media use.
The most popular social media platforms for business in South Africa are Twitter, as the new front runner, followed by Facebook and YouTube. The problems with these modes of interaction is the ease with which they can be accessed and the relative informality of the sites and the communications. Without invalidating the positives of social media, and these are many, their use is fraught with possible pitfalls and hidden dangers. This is especially so as the laws regulating acceptable behaviour on these platforms are underdeveloped and many users are seduced by the relative informality and the social aspect of social media. Added to this is the fact that more and more people are accessing their platforms of choice on their smart phones, at any hour of the day or night, and often without thought for the content or consequences of what they post. This has, for many, resulted in public relations debacles and significant brand damage, not to forget costly litigation.
While there are currently no specific laws in South Africa for social media use, this does not mean that such use goes unregulated. As with any social interaction, the laws of general application apply and all users should be mindful that, although there is a social element to social media, what you say on it amounts to a written publication which, if it goes viral, can travel very far, very fast, making a popular but careless and potentially damaging comment almost impossible to recall. The damage, once done, is therefore difficult to undo.
The dangers to employers arising from social media interactions are twofold: 1) the employer may be liable for, or face brand damage (and possible loss of business) as a result of content or comments posted on its business accounts; and 2) the employer may also be vicariously liable for, or face brand damage (and possible loss of business) as a result of, posts by its employees, on their own personal social media pages. Every employer should be aware of these risks as steps to prevent or mitigate liability and brand damage are critical.
So how do employers address the downsides of social media use and protect their business interests? One way is to implement and enforce a well thought out and clear social media policy that aligns with the employer’s social media strategy. In developing the policy, thought should be given to business needs of the employer on the one hand while being mindful of the privacy and dignity rights of employees, on the other. Rights to good name and reputation and freedom of expression are also relevant.
In the policy, employers should distinguish between employees’ private social media use and the use of social media for business purposes. Clear parameters should be set regarding what is considered acceptable conduct in respect of both of these categories of social media use. The consequences for inappropriate use and for breaches of the policy should also be highlighted so as to encourage compliance. The policy should also set parameters for time spent by employees on personal social media during work hours.
When addressing personal social media use, in the social media policy, a distinction should be made between private use outside work hours that, while possibly undesirable, does not impact on the good name and reputation of the employer or the employment relationship and private use, either during or after work, that has a negative impact on the employer or the employment relationship or opens the employer up to claims for vicarious liability. The reason for this distinction is that an employee’s social media use, that may be unsavoury but is strictly private and does not impact on the employer, is unlikely to warrant interference by the employer. Therefore, should the employer choose to take disciplinary action against an employee for any unsavoury conduct, the ensuing disciplinary action or dismissal may be substantively unfair for the reason that misconduct committed outside the workplace will only justify disciplinary action if it impacts on the employer, the employment relationship or employee relations. However, an employer will be justified in disciplining and even dismissing an employee who, either during or after normal working hours, makes derogatory, defamatory or scathing remarks about his or her employer on social media or uses social media to harass, victimise or discriminate against a fellow employee. Of course, as with any other dismissal, a dismissal for social media misconduct must be substantively and procedurally fair.
However, it is important to bear in mind that negative or potentially damaging posts made on social media by an employee about the employer will not always justify dismissal or any disciplinary action. For example, comments that amount to protected disclosures or conduct in furtherance or support of a protected strike are protected under South African law and therefore any ensuing disciplinary action will, in all likelihood, be unfair and any dismissal automatically unfair. An employer must carefully analyse the nature, content and context of the post in order to determine what action, if any, is appropriate.
Then, of course, there is the business use of social media. In this regard, employees responsible for controlling and managing the employer’s social media accounts may be held to a higher standard than those who use social media privately. As the business accounts are generally branded, it stands to reason that the employer is entitled to rigorously monitor the use of such accounts as any careless, derogatory, defamatory or embarrassing social media remarks will reflect directly on the employer and may result in brand damage and litigation.
The social media policy should also clearly identify ownership of the social media sites that are used by the employer for business purposes. The last thing an employer wants is for an employee, who leaves employment, to walk out with access to, and the password for, the business social media sites. There have been occasions where employees have done just this and have “locked” the employer out of the site by changing the password. There is also the risk that a former employee may change the username and password, while retaining the followers and connections. This will enable the employee to use the site for personal or professional purposes in the misplaced belief that, as the person responsible for the development and management of the site, he or she owns it and the followers. The time and money spent by the employer in developing the site or paying the former employee to do so, is then wasted and the employer is left with the option of either engaging in costly, lengthy and potentially unrewarding litigation to reclaim the site or starting a new site from scratch. Either way, the loss to the employer is likely to prove unrecoverable.
Another key consideration is what happens to business contacts, connections and followers should an employee leave to go to a competitor. This is particularly concerning when it comes to employees who are active on LinkedIn as they may make connections with key clients and customers of the employer while still employed by the employer. When they leave, possibly to go to a competitor, they will still have the “client lists” and contact information available to them on LinkedIn and may well use these contacts to set up business in competition with the employer. While the employer may not be without a remedy, the damage once done, may be costly and time consuming to reverse.
In developing the social media policy, consideration should also be given to protecting employees from cyber-bullying and cyber harassment. In terms of the Employment Equity Act, an employer will be liable for acts of unfair discrimination (which include harassment) committed by its employees, unless it can show that reasonable steps were taken to prevent contraventions of the Employment Equity Act. A good starting place is a policy which addresses these issues.
Finally, employers should be mindful of limiting their employees’ privacy rights only to the extent permitted in law and inasmuch as may be necessary to protect the business. Before accessing an employees social media accounts, the employer should be careful to obtain written consent from the employee concerned, and this consent must be given freely and voluntarily, without duress. In the absence of any consent the employer will likely breach the provisions of the Regulation of Interception of Communications and Provision of Communication-related Information Act.
It is then advisable to educate employees on the social media policy and what is considered appropriate use of social media. Additional and more comprehensive training should be given to those who are responsible for managing the employer’s social media sites. This will assist the employer to enhance the benefits of social media on the one hand and minimise the risk of brand damage, costly litigation and dismissals on the other.
In educating employees, it is essential that they understand that the right to freedom of expression does not mean that they are entitled to say as they please on social media and that they must avoid defamatory, derogatory or harassing statements. They must also understand that copyright and intellectual property rights apply equally on social media and they should therefore be cautious not to infringe these rights.
In conclusion, social media platforms can be valuable, exciting and effective tools which, if used appropriately, may be hugely beneficial to an employer for marketing and networking purposes as long as suitable measures are put in place to manage social media conduct and mitigate potential mishaps.