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 Employee

Rights and Interests

of the Company

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

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

Competing rights: Just because you are online doesn’t mean you can say whatever you want to say

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

EMPLOYEES’ RIGHTS TO FREEDOM OF SPEECH/OPINION VS DIGNITY

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:

“finally came out of the closet. I am gay and proud 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

“finally came out of the closet. I am gay and proud of it”

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

A Social Media

Strategy

A Social Media PolicyStaff

Training

Enforcement Mechanisms

Arrow 1

Arrow 2Arrow 3

Arrow 4

SOCIAL MEDIA POLICY

Every company engaging in Social Media should have the following in place:

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)

Educate staff on: Consumer Protection Laws

Employment Laws

Advertising Standards

Privacy and Data Protection

Copyright and Trademark

Rules of the Social Media Platforms (FB, Twitter, LinkedIn etc.)

CONTENT OF A SOCIAL MEDIA POLICY

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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

Thank you@_SocialMediaLaw