People increasingly use social media for personal and professional purposes. Concurrent to this is the ever increasing use of social media platforms by companies to promote their businesses and brands. The use of social media has afforded people the opportunity to engage with others across the globe in ways that were previously unimagined. The benefits of social media cannot be gainsaid. However, the unlawful and improper use of social media has given rise to local and international litigation and prosecution.
There has also been an increase in the number of employees who have been dismissed for social media misconduct. It is accordingly essential that employers take appropriate steps to safeguard themselves and their employees against the risks arising from social media use and abuse.
Without invalidating the positives of social media, there exist pitfalls and unforeseen dangers. This is especially so since the laws regulating the use of social media are nascent, and many users are seduced by the immediate accessibility and ostensible informality of social media platforms.
Added to this is the fact that people can access social media on their smart phones at any time of the day, without a second-thought for the consequences of the content that they post. This has increasingly resulted in public relations debacles and significant brand damage, not to mention costly and highly-publicised litigation.
While there are currently no specific laws in South Africa governing social media use, this does not mean that the use is unregulated. As with any social interaction, the laws of general application apply. Users should be mindful that, for purposes of the law, a social media post amounts to a written publication. If a post goes viral, it can travel very far, very fast, making a careless and potentially damaging comment virtually impossible to recall. Once done, the damage on social media is difficult to undo.
The dangers to employers arising from the use of social media are twofold:
1) the employer may be liable for, or suffer reputational harm as a result of, content posted onto its business social media accounts; and
2) the employer may be vicariously liable for, or suffer reputational harm as a result of, content posted by its employees onto their personal (public or private) social media accounts.
So how do employers address the pitfalls of social media use whilst tapping into the benefits that these platforms have to offer? One way is to implement and enforce a clear and tailored social media policy that aligns with the employer’s pre-articulated social media strategy. In developing the policy, the business needs of the employer need to be balanced against the rights to privacy and dignity of employees. The rights to good name and reputation as well as freedom of expression are also relevant considerations to bear in mind when developing a social media policy.
In the policy, employers should distinguish between employees’ private social media use and the use of social media for business or professional purposes. Clear parameters should be set as to what will constitute acceptable conduct in respect of these categories of use. The consequences for improper social media use should be clearly set out so as to cultivate knowledge of and encourage compliance with the policy.
In developing the social media policy, consideration should also be given to protecting employees from bullying and harassment on social media. 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 Act. A good starting place is to implement a workplace policy which addresses these issues.
Finally, employers should be mindful of limiting their employees’ rights only to such extent as is permitted by law and inasmuch as may be necessary to protect their business interests. Before intercepting an employee’s social media account, the employer should be careful to obtain consent from the employee concerned. The consent must be given freely and voluntarily. In the absence of any consent, an employer risks falling foul of the provisions of, amongst others, 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 constitutes appropriate and lawful use of social media. More comprehensive training should be given to those employees who are responsible for managing the employer’s social media accounts, as well as to the employer’s human resources department who will be responsible for disciplining employees who misconduct themselves on social media. This will assist the employer to enhance the benefits of social media, on the one hand, and to minimise the risk of reputational damage, costly litigation and dismissal disputes, on the other.
In educating employees, it is essential that they understand that the right to freedom of expression is not unfettered and that they must not post or disseminate defamatory, derogatory or harassing statements. They must also understand that copyright, intellectual property rights and laws pertaining to consumer protection apply equally to social media and that they should guard against infringing these rights, amongst others.
In conclusion, social media platforms are valuable, innovative and effective tools which, if used appropriately, can be hugely beneficial to an employer for business and marketing provided that appropriate safeguards have been put in place to mitigate and address the risks associated with social media misuse and abuse.