SOCIAL MEDIA AND THE LAW
@_SocialMediaLaw
OVERVIEW AND OBJECTIVES
SOCIAL MEDIA IN SOUTH AFRICA
SOCIAL MEDIA AND THE LAW
YOUR COMPANY AND THE LAW:
• How to protect your company
• How to protect your employees
INTRODUCTION
• International trends show that Social Media usage is being taken seriously
• Social Media usage in Africa is a rapidly growing trend
• Social Media will soon be one of the most commonly used means of
communications
• Social Media usage complicates employment relations and employment law
• Risk to Companies arises simply by virtue of an employer having employees
• Debbie Collier on Workplace Privacy in the Cyber Age
“The legal risks are not new, however, they must be considered afresh given
that technology makes it easier to cause extensive harm”
• Increased litigation locally and internationally
• Increased number of dismissals for Social Media misconduct
THE “TWITTER JOKE” TRIAL
Tweet by Paul Chambers: “Crap. Robin Hood airport is closed.
You’ve got a week and a bit to get your shit together otherwise I’m blowing the
airport sky-high!”
Recent statement by Keir Starmer:
“The fact that offensive remarks may not warrant a full criminal prosecution
does not mean that no action should be taken. In my view, the time has come
for an informed debate about the boundaries of free speech in the age of social
media.”
APPLICABLE LAWS
• No current legislation dealing explicitly with Social Media
• Need to look to other statutes and to Common Law to determine Social Media
Law
The Constitution









Equality and no discrimination
Human dignity
Privacy
Freedom of opinion
Freedom of expression
Access to information
Property
Right to demonstration, picket and petition
Right to fair labour practices
Employment laws



Common Law
Labour Relations Act
Employment Equity Act
Consumer Protection




Common Law
Unlawful Competition
Consumer Protection Act
Advertising Standards Authority
Intellectual Property


Copyright
Trademark
Case law

New area of law but recent upsurge of cases
internationally
WHAT SHOULD YOU BE THINKING ABOUT?
Rights and Interests
of the Company
Rights and Interests
of the Employee
What happens when the two are in conflict?
EMPLOYEES’ RIGHTS TO PRIVACY
• The right to privacy is an independent personality right
South African Constitutional Court:
“privacy is acknowledged in the truly personal realm, but as a person moves into
communal relations and activities such as business and social interaction the scope of
personal space shrinks accordingly.”
• Social Media increases the threat to privacy
• USA trend is to demand access to
pages and passwords
• No direct law in South Africa confirming whether or not one can demand
passwords, access etc.
EMPLOYEES’ RIGHTS TO PRIVACY CONT…
Deborah Ehling v Monmouth-Ocean Hospital (USA district court: New Jersey [2012])

“Privacy in social networking is an emerging, but underdeveloped, area of law”

“Most courts hold that a communication is not necessarily public just because it is
accessible to a number of people, courts differ dramatically in how far they think
that theory extends.”

Courts have adopted the concept of ‘limited privacy’
• Reasonable expectation of privacy is rapidly changing due to Social
Media use
• Right to privacy may be relevant to discipline and dismissals for Social
Media misconduct
EMPLOYEES’ RIGHTS TO PRIVACY CONT…
Electronic Communications Act (2002): regulates collection, collation,
processing or disclosure of personal information
Protection of Personal Information Bill (2009)
•Personal Information broadly pertains to:
“race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation,
age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language, birth;
education, medical, financial, criminal or employment history; any identifying number, symbol, e-mail
address, physical address, telephone number, location information, online identifier or other particular
assignment; biometric information; personal opinions, views or preferences; correspondence sent by
the person that is implicitly or explicitly of a private or confidential nature; the views or opinions of
another individual about the person; and the name of a person.”
•Defences: consent and making information public
EMPLOYEES’ RIGHTS TO PRIVACY CONT…
Invasion of privacy and the law:
• Electronic Communications Act (2002)
• Protection of Personal Information Bill (2009)
• Section 6 of Employment Equity Act (1998): discrimination
• Regulation of Interception of Communications Act (2002): if an employer is
granted access to wall posts by an employee’s “friend” on a voluntary basis, this won’t
constitute breach of the Interception Act
The issue of privacy still remains to be determined (currently case law only deals with open
profiles on Social Media Platforms)
EMPLOYEES’ RIGHTS TO FREEDOM OF
SPEECH/OPINION VS DIGNITY
Competing rights: Just because you are online
doesn’t mean you can say whatever you want to say
Reputation:
• Common law right to good name and reputation falls within
broader right to dignity
•
Generally holds sway over freedom of expression
Defamation:
•
Law of defamation attempts to balance right to unimpaired reputation and right to freedom of
expression
• Chris Cairns and Lalit Modi
 Cairns awarded £90,000 in damages; and
 £400,000 in legal costs
• Lesher v Does
 Texas Jury ordered $13,78 million in damages to defamed couple
 Order subsequently over-turned
EMPLOYEES’ RIGHTS TO FREEDOM OF
SPEECH/OPINION VS DIGNITY
Everyone who has contributed to the defamatory statement is liable
What does this mean if you like, share or re-tweet a defamatory article on
Facebook, Twitter or LinkedIn?
Now we have a Dilemma:
• Statements on Social Media can spread worldwide very quickly
• No universal defamation laws
• People can forum-shop in the country most likely to uphold their claim
DISMISSAL FOR SOCIAL MEDIA RELATED MISCONDUCT
Derogatory comments made on Facebook may be a fair reason to dismiss
•
Sedick & another v Krisray (Pty) Ltd (2011) 8 BLLR 979 (CCMA)
•
Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA)
•
Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217
(CCMA)
•
Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA)
COMMENTARY ON CCMA CASES
CCMA is prepared to consider what an employee says on his/her Facebook profile in
determining the substantive fairness of dismissal
Linfox Australia v Glen Stutsel - Fair Work Australia held:
• “Employees should … exercise considerable care in using social networking sites in making
comments or conducting conversations about their managers and fellow employees”
• “with communities’ increased use and understanding of Facebook and the adoption by
employers of more social networking policies, such a factor (namely the employee’s age and
claim of limited understanding of Facebook) may be given less weight in future cases”
CONDUCT IN FURTHERANCE OF A STRIKE
• #Marikana – trending topic on Twitter
• To what extent can employees and unions use Social Media to further
strike action?
• To what extent can employers prevent this?
• National Labour Relations Board’s view on Social Media policies is that
they may chill an employee’s right to engage in concerted activity to
improve working conditions
• Publication of strike slogans
• Automatically unfair dismissals
PROTECTING YOUR MARKETING EFFORTS
WHO OWNS THE SOCIAL MEDIA PROFILES?
US cases
•
PhoneDog v Noah Kravitz
•
Eagle v Morgan
•
Ardis Health LLC v Nankivell
This question still has to be determined in terms of South African law
Establish upfront who owns Social Media profiles and agree to it in writing
WHO OWNS THE SOCIAL MEDIA CONTACTS?
• UK: contacts in your LinkedIn profile most likely belong to your employer
o
Hays Specialist Recruitment (Holdings) Limited v Ions
• SA: enforcement of restraint of trade
o
Experian South Africa v Haynes
VICARIOUS LIABILITY
Potential vicarious liability of a Company for discrimination, harassment or defamation on Social Media
Platforms where the employee’s conduct occurs “during the course and scope of employment”.
•
UK case: Otomewo v Carphone Warehouse Ltd
o
Employees posted a status update on the claimant’s Facebook page, without his permission:
“finallycame
came
of closet.
the closet.
I amand
gay
andofproud
“finally
outout
of the
I am gay
proud
it”
of it”
•
o
It was posted at work, during office hours and involved dealings between staff and a manager
o
Employer held to be vicariously liable for conduct which amounted to sexual harassment on
the grounds of sexual orientation
Our view – risk of vicarious liability exists equally in South Africa
OTHER RISKS
•
Be careful of copyright and trademark infringements by the Company and its employees
•
Comply with general principles of advertising:
o
honesty, decency and truthful presentation
o
aim is consumer protection and fair play
An advertiser cannot ascribe qualities to his product which do not exist
•
The Australian Competition and Consumer Commissioner requires that Companies take down
misleading/inappropriate comments left by the public within 24 hours of posting as these can
amount to false advertising
•
Contracts concluded on Social Media
•
Breaching rules of Social Media sites
•
Discovery
SOCIAL MEDIA POLICY
Every company engaging in Social Media should have the following in place:
Enforcement
Mechanisms
Staff
Training
A Social
Media
Strategy
A Social
Media
Policy
Arrow 1
Arrow 4
Arrow 2
Arrow 3
SOCIAL MEDIA POLICY CONTINUED
Under the LRA an employer may not:
•
Prevent an employee or applicant for employment from exercising any right
conferred on him/her by the LRA
•
Prejudice an employee for disclosing any information that he/she is legally obliged
to disclose
•
Prejudice an employee for refusing to comply with an unlawful instruction
•
Advantage or promise to advantage an employee or applicant for employment in
exchange for that person not exercising any right conferred by the LRA (although
can conclude a settlement to settle a dispute)
CONTENT OF A SOCIAL MEDIA POLICY
Educate staff on:
Consumer
Protection
Laws
Rules of the
Social Media
Platforms (FB,
Employment
Laws
Twitter, LinkedIn
etc.)
Copyright and
Trademark
Advertising
Standards
Privacy and
Data
Protection
CONCLUSION
• Social Media is an underdeveloped area of law
• How our courts will deal with issues arising out of Social Media usage is
still, to a large extent, uncertain
• What’s happening abroad is useful as it gives us an idea of the types of
questions and risks we are likely to face
• Take pre-emptive measures to guard against such risks
23
Thank you
@_SocialMediaLaw