Law and order on social media
Don't be stupid.
This was the final word on the complexities of social media and legalities from Nozipho Mngomezulu, partner at Webber Wentzel, speaking at the ITWeb Social Media Summit, in Bryanston, yesterday.
Of course, the legality of social media is not that simple, said Mngomezulu, and many questions are best answered with a tentative 'sometimes', but at the end of the day, it comes down to not publishing something on social media if you are not sure about the legality of it.
"The problem lies in the fact that, yes, social media enables us to exercise our right to freedom of expression that is entrenched in the Constitution, but people seem to have this misconception that their right to freedom of expression is limitless when it comes to social media," said Mngomezulu. "They think that what they write on social media is immune to any sort of legal consequence. This is a gross misconception and simply not true."
The legal complications surrounding social media are varied, and are encountered by many businesses on a daily basis, she emphasised. These include the posting of sensitive, inappropriate or offensive content; employees badmouthing clients on personal blogs; and complexities regarding employees' expectations of privacy on their office computers.
There are various legal considerations that businesses should be aware of, said Mngomezulu. Defamation, for example, is "causing damage to another person's reputation. You may of course publish something that's defamatory - the point is whether you can back it up with a defence such as truth, accompanied by public interest, consent or fair comment."
Breaches of privacy, confidentiality and legal restrictions - such as the limitation on revealing the identity of rape victims - may not be observed by members of the public, and may cause a problem for businesses, she explained. Recent social media dramas, such as the posting of corrective rape jokes by two FHM employees, and the outcry against violent threats sent to feminist activists, also highlight the problems of hate speech and crimen injuria (intentional acts aimed at emotional or physical injury) on social media.
When questions of legality arise around posts on social media, liability becomes a complex issue, she noted. "The 'mere conduit' defence enables Web site hosts and service providers to be immune from liability in particular circumstances. Companies that have no monitoring of data, are members of ISPA, and have adopted ISPA's code of conduct, will not be held liable for material that goes through their sites - but if you receive a take-down notice from an aggrieved person, and don't take down the offensive content, you can be held liable."
Important factors in determining personal liability for content on social media include expectations of privacy, and links between an individual and employer: an individual who publishes problematic content on a social media account that can be linked to an employer may be held responsible for that content by the employer, noted Mngomezulu. A reasonable expectation of privacy may be upheld, such as when someone publishes on Facebook with appropriate security measures in place - but it is almost impossible to make a case of reasonable expectation of privacy on Twitter, she added.
Mngomezulu's advice is to adopt a social media policy, involving legal advice from the very beginning, which sets up policies and strategies that will avoid expense and embarrassment down the line. "Adopt a basic list of 'do's and don't's', and make sure employees are aware of it.
"And don't be stupid."