Social media and the employer-employee relationship
With the government effectively creating a temporary criminal offence to fight the spread of fake news and misinformation about COVID-19 on social media and online platforms, a lot of questions have arisen relating to employers’ risks when their employees use social media in such a way that the employer is depicted in a bad light, but also the employee’s obligations to an employer and how these obligations can be enforced in this technologically driven world.
The line between personal and work life has faded substantially with the use of social media and our dependency on the internet. There is less scope to claim that you posted something “in your personal capacity”. Employees are associated with employers in an online space which means as soon as someone says something in their personal capacity, like Vicki Momberg, Adam Kantzavelos, or the late Penny Sparrow, the employer is tagged in the post and the public wants to see action being taken.
Social pressure has seen the likes of big brands such as Pepsi and Nike cut ties completely with their employees and brand ambassadors over social media scandals. The same is happening with sports teams.
A quick Google search shows numerous examples of people in the South African context being fired or their employers taking disciplinary action against them for something they posted online that damaged the employer’s brand or reputation.
Employers have the inherent right to expect employees to act in good faith, be loyal, and have the best interests of the employer at heart. This relationship is based on trust and good faith and if this duty is breached your employer has the right to discipline or even fire you. This goes above and beyond anything that is expressly included in your employment contract.
From an employment law perspective, it must be borne in mind that an employer may be held vicariously liable for the conduct of its employees. For example, if such conduct is committed in the course and scope of employment, during work hours or at work.
This is quite interesting especially now as many employees are working from home but are using employer’s devices to do so and still keeping fairly regular “office hours”.
It is important for employers to educate their employees on social media usage and the serious damage it can cause to the employer’s brand. Social media policies should be put in place to show employees that what they do and say online could result in disciplinary consequences.
These social media, ICT or communications policies will in effect become part of the employee’s employment contract and any breach will be seen as a breach of the employment contract. If, for example, the employee posts hate speech on his/her personal Facebook account, the employer can take disciplinary action.
The employer needs to ensure that a clause is included in its employment contracts that any and all company policies form part of the employee’s employment contract and by signing the employment contract, the employee agrees to be bound by such policies, as amended from time to time.
Employer’s social media accounts
If a social media account is created in the employer’s name or on the employer’s instruction by an employee during working hours, the employer would be the owner of the account on that platform and own the content published on it. The employer should always ensure that its employment contracts make this clear and also ensure it has the login details for all accounts. Once an employee leaves, his or her access should be revoked, and the login details changed.
As an administrator of a Facebook Group, you may be held liable for the content that is posted to this group. It is thus important that the administrator appointed by the employer to run this social media account should consistently monitor the content uploaded. Group administrators must take active steps to ensure that the platform is not abused.
Practically, the administrator would only be responsible for content if he/she posted it or if he/she encouraged the posting of it and took no active steps to limit the effect of such content.
Case law on this subject holds that by consistently allowing commentary on a platform that is defamatory or harassing or amounts to hate speech, the administrator is effectively condoning it and creating a platform and online environment where this type of content is allowed to flourish.
The same must be considered if the employer creates a WhatsApp group for its employees.
As South Africans, we all have the right to freedom of our opinions or expressions BUT, and this is a big but, this right can be and is limited especially if we are infringing on someone else’s right.
That comment posted in the heat of the moment may be screenshotted and shared with your employer or pop up on the internet when your future boss or business partner Googles you. Social media does not have context. The comment might be a legitimate answer to another post or comment but screenshotted on its own it might send a completely different message.
Employers will be entitled to take action against employees who defame or harass people or use hate speech on social media, especially if this is included in a social media or similar policy. If you are unsure how to put such a policy together and make it “stick” legally, contact us for advice.