Before the advent of social media nasty, insulting and socially unacceptable thoughts and views were not as easily spread to the public in general and the hurt caused by such thoughts and views was not far reaching. Now, however, such posts provide news headlines on a consistent basis and the fall-out from an ill-advised posting can be life changing for the person concerned, and extremely damaging for any brand associated with that person.
The employment relationship
That these dangers all too often spill over into the employment arena and affect employment relationships and business reputations is often unavoidable as companies come under fire as a result of how their employees (and even ex-employees) conduct themselves on social media platforms. It is thus essential for companies to take appropriate steps to anticipate and address social media blunders so as to protect their rights and interests, as well as the rights and interests of their employees, clients, suppliers, and customers.
Social media strategy
It is not enough to implement a social media policy and hope for the best. A comprehensive social media strategy is needed. This strategy should set out how the company plans to use social media for business purposes but needs to go further and set out an action plan on how best to address the maelstrom that may be created by unacceptable online comments or opinions posted by employees, that backlash on the employer.
A case in point – Mr Chambers
An interesting case from the United Kingdom, which starkly highlights the unforeseen consequences of an innocent social media post, is a case involving Paul Chambers. This case has been coined the “twitter joke” trial and revolved around a tweet sent by Mr Chambers to his girlfriend because he was irritated that the Robin Hood airport in the UK had been closed due to snow. He tweeted “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!!”
Unfortunately for Mr Chambers, an official of the airport, who was monitoring twitter for threatening messages, saw this tweet and about four weeks later Mr Chambers was arrested. He was ultimately convicted for sending a menacing tweet under the Communications Act. Mr Chamber’s conviction was ultimately over turned by the High Court and as a result of this case, the Crown Prosecution Services was accused of wasting public funds and there was a massive uproar about Mr Chamber’s prosecution in the circumstances.
A new phenomenon
As a consequence of this case as well as others, the most senior prosecutor in England and Wales issued guidelines on how posts on social media platforms should be dealt with. Mr Stamer stated that social media “is a new and emerging phenomenon raising difficult issues of principle which have to be confronted, not only by prosecutors, but also by others including the police, the courts and service provides.”
South African law
In South Africa, threats of terrorist activity and bombings are criminal offences, as are threatening communications and conduct or communications that incite violence. Thus, had Chambers been in South Africa, his tweet may well have resulted in criminal prosecution, although, the fact that the tweet was clearly a joke would, we hope, have prevented this.
The lesson from this is that even posts that are light-hearted and meant as a joke could land your employees in hot water. That this could spill over into the workplace is a real risk and should be taken seriously. Having a social media strategy and plan in place could help you to address these risks and mitigate the possible fallout.
Rosalind Davey, Partner, Employment & Benefits Practice, Bowman Gilfillan Africa Group