Twitter, Facebook, Instagram, BBM and WhatsApp… It is a fact that the use of social media exploded. Employees’ now have a forum to express themselves freely about anything and at any time. However, views expressed on social media can severely damage your business or have a negative impact on your business.
So how do employers deal with an employee who expressed his/her view on social media and in return damaged your business?
In the South African common law is there are rules of defamation. These rules are applied equally to all network sites and electronic communication media. Thus, are there no special rules for social media or e-mail usage.
So let’s look at an example. If an employee publishes something that could damage the reputation of another person or a business, it can be construed as defamation. Note that all persons have the right to dignity and not to have their reputation in infringed.
Because of the public nature of social media sites, an employee’s posts can be viewed by all his/her friends. These friends can forward this message to their friends. Unfortunately, some of these friends may by your clients, which in itself is problematic and can damage the reputation of your business.
In a recent High Court judgement, the 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 post 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 everyday. Should we blame the alcohol, the drugs, the church, or are they more reasons not to have 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.
Therefore, employers and employees should beware that irresponsibly using and posting damaging statements and information on social media can have far-reaching and unacceptable consequences.
What should employers do?
Employers are encouraged to develop a social media policy to ensure that employers know what are expected form them and how they should behave on social media platforms. The social media policy must tell your employees the following:
- What is considered as responsible behaviour.
- What they may and may not post.
- What the consequences will be for employees who contravene the policy.
Some of the following acts can be included in the policy as an example:
“Cyber loafing” and the abuse of the employers resources
Employees are prohibited from using the employers’ resources including computers, tables and telephones, for their own purposes during or outside of working hours. Contravention of this rule can lead to disciplinary action taken against the employee.
Creating disharmony and disseminating offensive or abusive material
An employee that circulates information that is racist, defamatory, sexist or pornographic constitutes gross misconduct. Racist comments are not only offensive but also creates disharmony among employees and could lead to disciplinary action.
An employee who posts derogatory and offensive messages about the company may be found guilty of bringing the company name into disrepute. This could lead to disciplinary action or an action of defamation.
These are just some examples and every employer can tailor a policy to their business needs.
LWO Regsadviseur - LWO Legal Advisor
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