1. SOCIAL MEDIA AND THE LAW
@_SocialMediaLaw

2. 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
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@_SocialMediaLaw

3. that technology makes it easier to cause extensive harm”
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
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4. Recent statement by Keir Starmer:
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.”

5. 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
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
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

6. WHAT SHOULD YOU BE THINKING ABOUT?
Rights and Interests
of the Employee
of the Company
What happens when the two are in conflict?

7. 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.

8. 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

9. 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, 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

10. 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)

11. EMPLOYEES’ RIGHTS TO FREEDOM OF SPEECH/OPINION VS DIGNITY
Competing rights: Just because you are online doesn’t mean you can say whatever you want to say
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

12. EMPLOYEES’ RIGHTS TO FREEDOM OF SPEECH/OPINION VS DIGNITY
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

13. 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 (CCMA)
Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ (CCMA)
Smith v Partners in Sexual Health (non-profit) (2011) 32 ILJ 1470 (CCMA)

14. 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”

15. 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

16. 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

17. WHO OWNS THE SOCIAL MEDIA CONTACTS?
UK: contacts in your LinkedIn profile most likely belong to your employer
Hays Specialist Recruitment (Holdings) Limited v Ions
SA: enforcement of restraint of trade
Experian South Africa v Haynes

18. 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
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”
It was posted at work, during office hours and involved dealings between staff and a manager
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”

19. OTHER RISKS
Be careful of copyright and trademark infringements by the Company and its employees
Comply with general principles of advertising:
honesty, decency and truthful presentation
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

20. SOCIAL MEDIA POLICY Every company engaging in Social Media should have the following in place:
A Social Media Strategy
Arrow 1
Enforcement Mechanisms
Arrow 4
A Social Media Policy
Arrow 2
Staff Training
Arrow 3

21. 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)

22. CONTENT OF A SOCIAL MEDIA POLICY
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.)

23. 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

24. Thank you
@_SocialMediaLaw