You can get fired for what you say online

Moneybags journalist Jessica Wood investigates how comments that you make online can get you fired, the subject of a law suit or sent to jail.

Be careful what you say! This is the general advice given by social media experts in the know. You may argue that what you say in your status or on social media groups is private and not meant to be directed at or shown to the wider public but the rules have changed and you could be taken to court or even lose your job as a result of the things that you say.

In terms of the law, there are no regulators that monitor or restrict social media usage. However, according to a report from the Law Society of South Africa (LSSA) any comments that are made online that can be viewed as unethical or unprofessional will be treated in the same manner as other actions which are deemed to be unethical or unprofessional.

Rosalind Davey, a partner at Bowman Gilfillan Attorneys said: “[In] South Africa at this time we don’t have any specific laws that deal with social media use. There are various laws that will obviously apply to social media, so your laws of general application will apply equally to social media as to any other interactions.”

In a recent article, Samantha Fleming, a social media consultant for Afrosocialmedia said: “I think that social media users need to wise up a little; they need to become a little bit more sensible as digital citizens.”

Cases that have gone to court in South Africa

In Herholdt v Wills (2013), Herholdt sought to prevent Wills from posting any information relating to him on Facebook and other social media sites, following a defamatory statement that he posted on Herholdt’s Facebook page. The judge in the case granted Wills an interdict in relation to the defamatory statements, which required him to remove the defamatory comments. If he refused to remove the comments, he would be placed under arrest for 30 days or a period determined by the court for failing to comply.

Insparta v Richter (2013) was another case where a Facebook user wrote a defamatory comment on another user’s wall. The offender’s husband was tagged in the post, which the court ruled held him liable for the comment as well. Both the offender and her husband were ordered to pay R40 000 in damages to the applicant.

The Southern African Legal Information Institute, says it has seen an increase in the number of people who are dismissed for social media misconduct. In both Sedick & another v Krisray (Pty) Ltd (2011) and Fredericks v Jo Barkett Fashions (2011), the employers dismissed employees for derogatory comments that the employees made on their Facebook profile statuses. These cases were taken to the Commission for Conciliation, Mediation and Arbitration (CCMA) where the dismissals of the employees were upheld.

“[The] standard laws of defamation apply, whether it’s on social media or communication, and the law of defamation holds you accountable for any defamatory content that you publish or that you disseminate. Even if you share a link to a defamatory article you can be liable because you are effectively publishing it,” explains Davey.

According to a presentation by Bowman Gilfillan, it is important for employers to educate their staff about correct conduct online and inform them of the company’s policy with regards to social media usage.

The law

“Essentially the courts are accepting what you say on social media can get you into trouble and it can get you fired,” said Davey.

In the past in the United States, employers could ask potential employees for their Facebook log in details to see what they post on the social media platform. Depending on the content that they found online, the employer could decide not to hire.

Laws have since been passed that restrict employers from doing so. However, Davey points out that if your social media profiles are public anyone can access them, including your employer or potential employer.

With regards to employers gaining access to your Facebook or social media accounts Davy said: “The only thing I think we can do is if you access Facebook on your work computer, then we [the employer] may have the right to search through it if the employee has given consent. But it’s going to become trickier with smartphones and the like.”

Even if you make comments on your social media sites in a private capacity, if the comments are derogatory, defamatory or racist and you can be traced back to your place of employment, these comments can have a negative effect on the reputation of your employer. In such a case, it is possible for your employer to fire you as you have brought the company’s brand into disrepute.

“It will always be the difference between your workplace conduct and out of work conduct. The difficulty with social media is it becomes more and more difficult to distinguish between the two,” explains Davey.

For example, in a case last year in South Africa, Vivienne Basson was fired from Ericsson South Africa for racist comments that she made on her personal Facebook account. She used the ‘K’ word when referring to a taxi, adding that she’d vote for the death penalty and that ‘these savages don’t deserve to live’. There was public outcry about her tweet, with people outraged at her employer as well. She apologised for her remarks in follow-up messages and tried to explain her comments.

Twitter users demanded that Ericsson fire Basson for her discriminatory and racist comments. Ericsson thanked the public for their comments, and later announced via Twitter that Basson was no longer working for the company as she breached the company’s code of ethics.

Davey notes: “The thing is, it’s not even necessarily your employer that holds you accountable, it’s the community at large.”

Public versus private

“My feeling is the more people you publish statements to the less your right to privacy is going to play a role,” said Davey.

Your public and private lives are no longer separate. People post things about their daily life on their social media sites, which are accessible to numerous people. This is especially true if you do not have privacy settings on your accounts, which means that anyone can access your profile to see what you say and do.

Davey believes that laws relating to privacy are going to have to evolve. She highlights how attempts have already been made in the United States to regulate employer’s access to their employees’ or potential employees’ social media sites, such as Facebook.

“The difficulty with trying to create specific laws is very often it has the opposite effect, it ends up being too restrictive. Whether or not South Africa will implement specific laws remains to be seen. But I think what our courts are going to be called on to do more and more often is determine the fine line between what is in the public realm and what is purely private,” she states.

How to protect yourself on social media

Davey said: “My advice is if you have a slight discomfort about whether or not you should publish it, don’t do it… If I feel [that] I should go and say to someone, should I tweet this, the answer is clearly don’t tweet it.”

According to Davey, when using social media you should avoid making any remarks that could be considered racist, as this can be considered criminal defamation, as well as any derogatory or defamatory comments.

“It’s just about being careful. Everyone knows they have a right to freedom of expression. The difficulty is that not everyone realises that freedom of expression will take second place if by exercising your freedom of expression you are infringing on someone’s privacy or dignity,” she adds.

When using social media it is important to weigh your right to freedom of expression against the rights of other people, as this is what the courts will take into consideration.

Further reading:

Local authors of the book ‘Don’t film yourself having sex & other legal advice for the age of social media’, Emma Sadleir and Tamsyn de Beer, are lawyers specialising in social media law. In their book they explain how people can protect themselves and their family online, providing real-life examples of cases where things that people have said or done online have had negative impacts on their personal and professional lives.

Some of the tips that they offer in their book include:

  • Treat everything that you put on social media as public.
  • Protect your social media accounts by using different passwords for each account and changing them often.
  • Be cautious of using geo-locating apps on the websites.
  • Ensure that the maximum security settings are activated on your account. This includes preventing apps from gaining access to your information on other apps.
  • Be considerate when posting private information about other people.

In a recent interview with Fairlady (February 2015), Sadleir said that when using social media people need to realise that the information that they place online is permanent. And you need to be aware of the people using social media around you. There is always someone around with a camera to take photographs or videos of you doing something, which you might later regret if it were to get out online. Especially if you are identified in the post.

In short, being active on social media requires you to be responsible. You need to realise that you are liable for all comments that you make or are tagged in on social media, as well as for any messages or tweets that you ‘share’ or ‘retweet’ to your friends and followers.