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Understanding the risks

Regina Pazvakavambwa
By Regina Pazvakavambwa, ITWeb portals journalist.
Johannesburg, 26 Jun 2014

In today's world, companies don't have a choice but to have a presence on social media; therefore it is important to be aware of the legal risks and safeguard against them.

So said Nozipho Mngomezulu, a partner at Webber Wentzel law firm, during her presentation at the ITWeb Social Media Summit 2014 in Bryanston yesterday.

She added that most social media users think they have limitless freedom of expression and can post whatever they want without legal consequences.

Freedom of expression does not amount to an unregulated right to defame others, said Mngomezulu, revealing that both individuals and employees are liable to what they post on the social media platform. The legal ramifications include being sued for defamation of character, infringement of privacy, hate speech, contempt of court and court orders, and not abiding to legal restrictions.

"It's often not clear where personal and professional boundaries lie and where a user's professional obligations start and end when posting on social media sites," said Mngomezulu.

An employer can be found to be accountable for the conduct of its employee, she said, and gave an example of a case in the UK, Otomewo v Carphone Warehouse in 2012.

During office hours, an employee took a colleague's phone and posted the status "Finally came out of the closet. I am gay and proud of it."

Since it was posted at work, during office hours and involved dealings between staff and a manager, the employer was found to be vicariously liable for the conduct which amounted to sexual harassment on the grounds of sexual orientation.

If you are in an employer/employee relationship, you have to remember to always act in the employer's best interest, that is a common law compulsion, said Mngomezulu. She added that saying "I tweet or post in my personal capacity" should not be construed as legal advice.

Also, employees need to be careful that they do not post derogatory comments about their colleagues on social media, because it can lead to dismissal.

In a court case, Sedick v Krisray CCMA 2011, two employees were dismissed after being found guilty of having brought their employer and fellow employees into disrepute as a result of comments they had made on Facebook.

The Commission for Conciliation, Mediation and Arbitration is prepared to consider what employees say on their Facebook profile in determining the substantive fairness of dismissal, stated Mngomezulu.

Employees should exercise considerable care in using social networking sites to post comments or conduct conversations about their managers and fellow employees, she added.

Also, employers must take care to not infringe on their employees' privacy by accessing their private e-mails without consent.

In Smith v Partners in Sexual Health 2011, the CEO of the company accessed an employee's private Gmail account while she was on leave and discovered negative e-mails between her and former employees. The CEO could not fire her because she had contravened the RICA act as well as infringed on the employee's privacy.

When on social media platforms, users need to remember that the same professional ethical obligations apply to their conduct in 'online' and 'offline' environments, she concluded.

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