To manage an organisation's reputation and ensure that it is not associated with any controversial, discriminatory or damaging views, it is vital to keep an eye on what employees are putting out on social media platforms.
This is according to Kay Vittee, CEO of Quest Staffing Solutions, who says social media misconduct cases are becoming more common with offensive remarks that bring employing organisations into disrepute. Vittee recommends that organisations include a social media policy in the employees' contract of employment, as it protects both parties, and provides the organisations' clear codes of conduct, along with potential consequences, should the policy not be adhered to.
"Potentially damaging social media activities range from sharing confidential information, infringing on customer privacy, cyber bullying, posting comments which can be perceived as discriminatory or inappropriate, which result in elicit consequences - for both employee and employer. There is a need for clear guidelines of what constitutes hate speech, defamation or racist content in the posts of staff on a public forum as these can have a negative impact on an employer. As such, employers should take the necessary action in terms of disciplinary hearings and/or dismissal," Vittee explains.
So how can employers deal with negative employee social media activity?
"When an employee behaves in a way which makes the employer believe that a third-party may change his or her perception on the organisation, they are well within their rights to pursue legal action and dismissal, however, it is important for business leaders to consider some preventative procedures which focus on educating staff on the organisations policy," she advises.
Social media policy
John Giles, a legal advisor at law firm Michalsons, says it is doubtful that most local organisations have a social media policy; however they have a right to access an employee's social media platforms even without a social media policy.
"Employers are advised to get written consent and also have proper social media policies in place, however, even without written consent or a policy; they are still allowed to access any communications on any work-related system or platform.
"Organisations also have a right to dismiss employees based on what they say on social media if the public comments have been found to bring the organisation to disrepute as policies are only treated as guidelines and the law permits dismissal without any policy. But a valid reason for dismissal must also be fair and employers must be able to prove that they had a valid reason to dismiss."
However, he adds that all employees have a right not to be unfairly dismissed and this includes the right to respond to any allegations made against them before any final decision is taken. So employers must investigate any incidents where the good name of the enterprise may have been harmed, continues Giles.
Emma Sadleir, media law consultant and founder of Emma Sadleir Social Media Law, says most organisations don't have a social media policy, and she advises them to have one.
"I think you do your employees a big favour by spelling out, in a separate, easy-to-read and educational policy, what is acceptable and what is not. Strictly speaking a separate social media policy is not necessary, because the kind of behaviour which gets employees into trouble is invariably regulated in other policies and codes of conduct - e.g. don't bring the company into disrepute and that you owe your employer a duty of good faith - are standard terms in every employment contract, but explaining what those rules mean in the new digital environment is crucial.
"There is a misconception that there is a separate set of 'social media laws' or 'cyber laws' that apply to the online world. This is absolutely untrue: the same laws that apply to your conduct in the real world apply to your conduct (and content) in cyber space," she explains.
At Emma Sadleir Social Media Law, she points out; the number of requests to create or update social media policy over the past few years has increased dramatically. These clients include schools, universities, professional associations and government.
"The absence of a social media policy does not negate the duty of good faith inherent in an employer/employee relationship, all the codes of conduct and policies that apply to an employee in the real world, apply online," she asserts.
Defamation
Sizwe Snail ka Mtuze, director of Snail Ka Mtuze Attorneys at Law, says what a person posts on social media about another or an organisation must be fair comment or the truth and not defamatory or scandalous.
"Defamation on social media exposes the person making the defamatory statements to a claim for damages by the party having been defamed. Our courts have consistently awarded damages to the victims of defamation, albeit in modest amounts. Due to the increasing popularity of social media, it is important that persons take cognisance of it and use it in lawful and acceptable manner. Failure to observe reasonable use and lawful use may expose you for a claim for damages or may see you at the receiving end of an interdict," he adds.
While it is essential for businesses to establish and grow their social media presence to connect and engage with the public, one needs to always keep in mind that nothing posted online is truly private, he warns.
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