South African labour legislation prohibits employers from demanding social media usernames and passwords from employees.
This is according to Johan Botes, director in the employment practice at Cliffe Dekker Hofmeyr business law firm, who says in light of the recent controversy surrounding the issue in the US, South Africans should know they are protected.
“Employers in SA may not unfairly discriminate against employees or applicants for employment on a number of grounds listed in Section 6 of the Employment Equity Act 55 of 1998 ( EEA). These grounds include race, gender, pregnancy, sexual orientation, HIV status, political opinion, conscience, language, religion and similar grounds,” says Botes.
“Accessing the social network account of an employee or applicant for employment may result in the employer gaining insights into information of an employee concerning one of these listed grounds.”
At the end of March, Facebook fired back at reports of US employers demanding employees' social networking passwords, saying the practice contravened Facebook's terms of use and was potentially illegal. Facebook's chief privacy officer for policy, Erin Egan, says in an official blog post: “As a user, you shouldn't be forced to share your private information and communications just to get a job.
“We'll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.”
compliance officer or coach on their social network sites. These “force-friends” are then tasked with regularly monitoring the posts, tweets and blogs of the candidate.
Botes says only in very select cases in SA may there be an operational need to have a job applicant make full disclosure of all information about them in the public domain. SA's Commission for Conciliation Mediation and Arbitration (CCMA) has also accepted that in certain cases employees may be dismissed for posting derogatory remarks about their employer, management, colleagues or clients on social networks or blogs.
“However, demanding that an applicant for employment or an existing employee divulge personal, private usernames and passwords may be a bridge too far for a commissioner, considering the dismissal of an employee who refused to divulge such information,” says Botes.
The Labour Relations Act also protects job applicants and employees to claim that the instruction to divulge private information does not have a bearing on the employment relationship and is not a lawful instruction.
Botes advises South African employers to tread carefully. “There can be no doubt that many employers use the information readily available on the Internet to do a surface background check on prospective employees (and to investigate current employees).
“However, in the absence of reasonable suspicion that the applicant or employee has posted comments that may have a bearing on the employment relationship, there is no basis for an employer to demand full access to the private information posted by the person on social media sites.”
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