HR Pulse

What are your legal rights about social media?

With the explosion of social media, there are challenging obligations and responsibilities that are created. Your employees can express themselves about literally anything, and some of these views could damage your company.

So how do you deal with an employee who does something wrong on a social networking site?

The common law rules of defamation (there is no such thing as “libel” in this country, as there is in the United States) apply equally to all social network sites and electronic communication media. There are no special rules for social media or e-mail usage.

Users with mischievous and negative agendas beware!

If, for example, person x 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 for you if your employees express negative opinions about your company.

Because of the public nature of social media sites, one of your employees’ posts can be viewed by all his friends and these friends can forward this message to their friends. Unfortunately, some of these friends may be your clients, which is in itself problematic:
 

• Your company’s reputation can be tainted and smeared by an aggrieved employee in no time whatsoever.  
• This is aggravated by the fact that social network sites are a forum 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 – the complainant is a known “party animal”.

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 so you must take care to avoid unnecessarily harsh words.

 

Author: Jan Kemp Nel is the CEO of Streetwize Labour Law (Pty) Ltd.. He has a BA(LLB) from the University of Pretoria and a Diploma in Labour Relations from Unisa. With his 30 years’ experience in industrial relations and labour law, he has developed and introduced procedures in industrial relations in all areas He advocates and practises a preventative philosophy regarding industrial relations, recognising that conflict must be dealt with using proactive methods.