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Social media in the workplace: Balancing rights to privacy with freedom of expression

2nd May 2013

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As much as employers stand to benefit from the ease, speed and cost-effectiveness of social media, economic gains can be just as quickly lost on industrial and public relations crises, as well as litigation, where the use of social media is not properly managed. 

According to Lenja Dahms-Jansen, associate at pan-African legal services group Bowman Gillfillan, “While social media may differ from traditional methods of business and marketing, its regulation in the workplace involves the same issues that HR practitioners grapple with on a daily basis, such as balancing an employer’s rights to privacy, dignity and reputation against an employee’s right to freedom of expression.”

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She added that in South Africa everyone has the right to freedom of expression, including the right to publish photographs and slogans. Unfortunately, too many employees believe that their right to freedom of expression amounts to an unfettered right to defame others.

When online conduct negatively impacts a working relationship, whether with the company or amongst colleagues, disciplinary action against an employee may be justified.

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“In order to strike the appropriate balance between the conflicting rights of an employer and its employees, HR practitioners should collaborate with management in outlining a social media strategy and policy for the business,” she suggested.

Policy should elaborate on what online conduct will and will not be accepted in the workplace; the responsible use of social media in personal or professional capacities; the consequences of professional social media use; and, the consequences of breaching policy.

Ms Dahms-Jansen added: “It is important to alert employees to the fact that what they say on social media may not only negatively impact the company’s brand, but also their own professional brand. Employees should conduct periodic online audits in order to manage their professional brand by ascertaining what online content is linked to their name. Employers should not, however, use such online audits as a mechanism to unfairly discriminate against or dismiss an employee.”

Employees also need to understand that, apart from brand damage, social media use and abuse may also have legal repercussions insofar as vicarious liability, civil claims and criminal prosecution are concerned. Statements made by a company representative online can be held to the same legal standards, and are subject to the same repercussions, as traditional media communications.

When dealing with breaches of social media policy, Ms Dahms-Jansen said it is crucial to remember that not every breach will warrant dismissal, and that each breach must be considered on its own merits. In determining the nature of a breach, consideration should be given to whether it arose out of misconduct or poor performance.

“When dealing with social media use, abuse and misconduct it is also important to differentiate between professional use on behalf of the company, and personal use. The CCMA has accepted that derogatory remarks made about an employer on an employee’s personal social media profile may justify dismissal. This is particularly the case where the employee’s profile is not privacy-protected and is open to the public to view,” she added.

When investigating a possible breach of social media policy, HR practitioners should be wary of unlawfully breaching an employee’s privacy rights and regard should be had to the Regulation of Interception and Provision of Communication-Related Information Act.

“A clear-cut social media policy should serve to considerably minimise the risk of industrial and public relations crises as well as litigation by ensuring that the boundaries pertaining to online conduct are known, understood and acknowledged by each employee,” said  Ms Dahms-Jansen.

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