Social Media and the Law

Social media platforms such as Facebook, Twitter and YouTube have become an integral part of our everyday lives and have an important role to play in our social environment and help us keep in touch with others and stay informed of events around the world. Yet despite many of the benefits of social media platforms, these platforms also create opportunity for abuse and often bring out the worst in people, often without thought as to the consequences of their action.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.

Defamation

Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation.

Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him in a Facebook post.

In another case a woman was awarded R 40,000 in damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook. The judge found that although the former husband was not the author of the postings, he was tagged in and knew about them and allowed his name to be coupled with that of his new wife thus creating liability jointly with the author of the postings.

Hate Speech

Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Dismissal

Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heels of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) has dealt with several of these cases where the dismissal was found to be fair based on the evidence garnered from the social media sites.

Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticising management, criticising the employer, employees using social media to convey internal matters of the business to former employees, etc.

Take note

What should you take note of when using social media to avoid legal or disciplinary action arising from your conduct on these social platforms?

• The most common defence against defamation is that the publication was true and in the public interest. Make sure about your facts before posting anything and ensure that you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.
• Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
• Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
• Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:

• Keep posts legal, ethical and respectful.
• Do not engage in online activities which could harm the reputation of the company.
• Do not disclose any confidential or business information of the company.
• Do not discuss colleagues, managers or information pertaining to the company.

A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn’t consider posting it on social media.