South Africa: Social Media Policies In South African Workplaces – Unjustifiable Constitutional Limitation?

According to the Ornico Social Media Landscape in South Africa for 2018, there are approximately 16 million Facebook users, 8 million Twitter users, 6.1 million LinkedIn users and 3.8 million Instagram users. Social media has become an integral and inevitable part of our everyday lives. Unfortunately, as enticing as it may be to divulge every aspect of our lives on social media, these platforms increase employers' reputational risks, forcing companies to consider the regulation of employees' social media usage. This begs two fundamental questions – do social media policies pass constitutional muster? And what insurance cover may be procured to protect users against their own social media blunders?

Social media "slip-ups" and the effect thereof on employers is not a new phenomenon. The reputational risks of so-called ''irresponsible social media usage'' were recognized long before the likes of Penny Sparrow, Chris Hart and Gareth Cliff were openly criticized for their posts on social media platforms and their employers publicly shamed for their respective employees' unconscionable conduct. In the case of Media Workers Association of South Africa obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA), several radio station employees publicly criticised the company's Board, labelling the station manager a criminal. The employees were subsequently dismissed and, on application to the CCMA, this dismissal was held to be fair in light of the fact that the employees were held to have made unfounded allegations without first addressing their concerns internally.

In the case of Fredericks v Jo Borkett Fashions [2011] JOL 27923, Fredericks was dismissed following derogatory updates made on social media that were left open for view by the public at large. Fredericks challenged the dismissal on the basis that it was a violation of his constitutionally entrenched right to privacy. The CCMA in this instance similarly held that Frederick's dismissal was fair in light of the fact that the posts were made ''open to the public'' and may have a negative effect on Jo Borkett's long-established brand name.

One may question how an employee's posts on social media may be attributed to their company. Employees are representatives for and on behalf of their companies whether they are at work or not. An employee's defamatory or pejorative comments on social media may be viewed by the public at large to be representative of the views of the company and/or reflective of the company's brand or ethos.

Whilst freedom of expression is a fundamental human right and is constitutionally entrenched, this right is not without limitation. Freedom of expression is entrenched in section 16 of The Constitution which provides that ''everyone'' has the right to freedom of expression which right includes freedom of press and media, freedom to impart and receive information or ideas, freedom of artistic creativity, academic freedom and freedom of scientific research. The right to freedom of expression is self-limiting as it expressly excludes advocacy of hatred based on race, ethnicity, gender or religion that may constitute an ''incitement to cause ham''.

The general limitation clause in section 36 of The Constitution is also relevant as it provides the grounds upon which rights in the Bill of Rights may be limited.

The right to freedom of expression cannot be viewed in isolation and must be viewed against the constitutional rights of others, including the right to dignity, the right to equality (in terms of which the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was enacted to give effect thereto and to guard against hate speech and discrimination on several specified grounds), as well as the right to privacy. Social media posts impinging on these rights may well lead to delictual action, a civil claim for defamation or even a criminal claim for crimen injuria.

The risks of social media use are both evident and prevalent, however, irresponsible social media use may not only result in a claim against the implicated individual but the individual's employer is also at risk from a vicarious liability perspective (i.e. the employer is indirectly liable for the actions/omissions of its employees). In addition to vicarious liability, the employer must consider its reputational risk from a brand point of view. Employers' risks are further complicated by a lack of legislative measures governing social media use and abuse in the workplace.

Social media policies in the workplace are gaining increasing popularity as employers seek to protect themselves against the potential adverse consequences of social media use. Social media policies seek to delineate the principles and parameters of ''responsible social media use'' and the consequences for non-compliance with the outlined principles. The consequences, in most instances, may include disciplinary action such as suspension and/or dismissal. Having considered the right to freedom of expression, it may, in theory, be argued that social media policies in the workplace infringe this right. In practice, however, it depends on various factors, including the nature of the work, the brand and ethos of the company and, most importantly, the provisions of the social media policy. Social media policies entrenching an out-and-out ban on social media usage are unreasonable, not cognisant of reality and do not take into consideration the right to freedom of expression. In such an instance, it is unlikely that the social media policy is constitutionally justifiable. On the other hand, a social media policy that takes into account and balances the rights of employees to use and express themselves on social media with the need to protect the company's own reputation and guard against hate speech and defamation, and which, simultaneously, does not impose unreasonable consequences that may in certain instances, for all intents and purposes, constitute ''automatically unfair dismissals'' can hardly be faulted.

Due to the increasing awareness surrounding social media liability issues, several insurance companies are in the process of producing and marketing products to meet their specific client database needs in this respect. In early 2017, one of South Africa's leading insurers announced the launch of its social liability product through its traditional broker base. This policy provides legal defence cover and, in particular, provides cover for the legal fees associated with defending oneself in court following allegations of defamation and/or invasion of privacy on social media. This cover does not, however, extend to defamatory comments of a racial, cultural or religious nature. These claims may however be covered by the company's general liability policy which in the ordinary course contains a defamation extension. One however has to be mindful of the policy's various exclusions, particularly insofar as it relates to conduct which may be considered unlawful.

Due to the heightened awareness of social media issues and disputes, it is highly likely that we will see in increase in tailor-made policies of this nature in the foreseeable future.

Social media is inescapable, particularly in light of the rise in technological advancements around the globe. Unfortunately, and as the age-old saying reminds us ''with great power comes great responsibility''. Whilst individuals are urged to monitor and exercise caution on social media platforms, employers are similarly cautioned to exercise scrutiny in the drafting and reviewing of their workplace social media policies in light of employees constitutionally entrenched rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Kristen Wagner
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