LexisNexis has recently published Social Media in the Workplace. This was a book that I was particularly excited to review as it is highly relevant in our current age of technology where employees are frequently posting information on social media platforms that relates to or has an impact on their employers. This book did not disappoint and is a lot more comprehensive than I initially anticipated.
The first part of the book deals with the balancing of the rights to dignity, equality, privacy and freedom of expression. It goes into detail in relation to each of these rights and explains how these rights have been interpreted through South African cases, as well as cases in other jurisdictions. What is clear is that social media increases the risk of the rights to dignity and privacy being infringed and this book outlines the remedies for such infringements. It also deals with the interplay of social media with legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Employment Equity Act 55 of 1998, the Protection from Harassment Act 17 of 2011, the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, the Protection of Personal Information Act 4 of 2013 (POPI Act) and the Electronic Communications and Transactions Act 25 of 2002.
For me personally, I particularly enjoyed the case studies on the right to freedom of expression in other jurisdictions, such as Australia, Canada, New Zealand, the United Kingdom and the United States. One section of the book that I thought could have been expanded on was the section on the POPI Act. I would have liked the book to go into a little more detail on the circumstances under which uploading photographs and special personal information onto social media platforms would be permissible under this legislation, once in effect.
Part B of the book focuses on considerations for businesses and particularly explores the law of defamation and its interplay with freedom of expression. Again, the book engages with how this has played out in other jurisdictions. What is very relevant for employers is the section on vicarious liability, which sets out the circumstances under which an employer may be liable for content posted by its employees. It also looks at the duties of directors and employees when using social media, which duties should be clearly communicated to employees.
The section on off-duty misconduct is particularly relevant as employees frequently upload information onto social media platforms in their personal capacity. The book sets out the factors to be considered when determining whether an employee should be disciplined for misconduct on social media, such as the employee’s position and whether the employee identified their employer, the effect on the good name and reputation of the employer, the extent to which the conduct is incompatible with the corporate culture of the employer and the effect on the efficiency, profitability or continuity of the employer.
Finally, the book provides some practical advice on what employers can do to protect the workplace from social media fallout, such as –
- having a social media policy;
- providing training to employees;
- having a social media strategy and crisis management plan;
- communicating to employees the parameters around business use and personal use of social media;
- implementing an escalation procedure; and
- taking steps to manage enforcement of the social media policy.
Monique Jefferson is an attorney at Bowmans in Johannesburg.
This article is republished with permission from the editor of De Rebus, it was first published in De Rebus in 2018 (March) DR 19, and replaces an earlier review.