Social media is here to stay. This is evident from the number of everyday users of social media platforms such as Facebook, LinkedIn, Twitter, Instagram and the like.  Companies might have noticed an increased social media usage, and a concomitant greater online presence of their representatives, magnifying such an employer’s / companies’ risks, especially from a reputational point of view. It is therefore of utmost importance that companies start to take steps to anticipate and mitigate these risks.

A study conducted by Deloitte in 2014[1] cited a company’s reputation as the number one risk area, with social technologies as one of the main factors driving rising concerns about reputation. The immediacy of social media makes it even more powerful. With the click of a “post” option, reputational damages, claims for damages, harassment, defamation or discrimination and loss of intellectual property are just some of the risks modern-age South African companies may be faced with.

Every employee of a company is a brand ambassador of the company as their affiliation with the company can be displayed on numerous social media platforms. A modern-day company’s brand is not confined to one or two marketers or public relations employees of the company anymore.

The general public and most company representatives will rely on their constitutional rights such as the right to privacy or freedom of expression when confronted by the company about an unsavoury post made on his or her private social media account. The dilemma with social media is that there is no turning back – once the “post” option has been clicked, it is done. One can try to remedy a situation by altering or deleting a post, but one cannot guarantee that the original post has not already been shared, or saved by any other social media user, thus making it virtually impossible (at this stage) to permanently delete any unsavoury posts.

Currently there is no legislation in South Africa dealing specifically with social media. Companies must look at other statutes such as the Constitution, employment law, consumer protection law, intellectual property law and the common law to determine social media law and policies in the workplace. One can also consider social media policies implemented successfully by other countries.  Even though social media claims are quite new to South African Courts, recent judgments by Courts made it clear that they will not tolerate the use of social media by individuals as platforms to vent about their views on, amongst other, companies.

The right to privacy and the right to freedom of expression are both rights granted to each individual in our Constitution. However, the Constitution also has its own limitation clause. The exercise of every right (except the right to life) must be balanced against various factors including human dignity, equality and freedom. Companies and individuals cannot post freely on social media and thereafter hide behind the right to privacy or the right to freedom of expression if their post may infringe another’s dignity. In the all-important case of Le Roux and Others v Dey [2011 (3) SA 274 (CC)] it was stated that

…the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression… what is clear though and must be stated is that freedom of expression does not enjoy superior status in our law.”

The right to privacy (which includes the right not to have the privacy of communications infringed upon) is also not absolute. In the fairly recent case of Gaertner and Others v Minister of Finance and Others [2014 (1) BCLR 38 (CC)] the Constitutional Court explained that, when an individual move into communal relations and activities such as business and social interactions, the scope of personal space shrinks. Company representatives cannot therefore hide behind their right to privacy when posting on social media platforms.

It is advised that any communication to be made publicly by a company, should be scrutinized, thoroughly examined and dissected before it is published on behalf of the company.

Together with a qualified social media law practitioner, modern day companies should therefore invest in and implement the following:

  • A clear and concise social media policy;
  • A social media audit to ensure that when a company representative leaves the employ of the company, all ties between the company and the ex-company representative are broken;
  • Provide continued training and educate company representatives on the company’s social media policy;
  • Develop a social media strategy for the company as a whole;
  • Provide continued training to company representatives on the responsible use of social media with reference to applicable consumer protection law, employment law, advertising standards, privacy and data protection, rules and parameters of social media platforms, as well as copyright and trade mark law;
  • Ensure all social media policies and/or manuals are at all times easily accessible to all company representatives;
  • Refer to the company’s values and the need of company representatives to uphold the values of the company and the Constitution, with specific mention to equality. Immediate dismissal on any discrimination based on racism on any platform including social media, should be stipulated clearly;
  • Manage enforcement mechanisms;
  • Crisis management plan.

This article was written by Natasha Truyens, an Associate Attorney at Barnard Incorporated Attorneys in Centurion, Pretoria.

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