Social media and the law

Social media and the law

In a time of information overload and instant gratification, social media platforms have become an integral part of our everyday lives. They allow us to keep in touch with others, especially those who are geographically remote and stay up-to-date with world news. Despite all the benefits of social media, there is a huge risk of abuse. What you publish on social media may also be used against you in significant ways.

Once something is posted on social media it is considered “published”. As a result, it is subject to the laws applicable to traditional media.

Defamation

Defamation is defined as the wrongful, intentional publication of words or behaviour concerning another person that has the effect of injuring his or her status, good name or reputation. In order for a statement or social media post, to qualify as fair comment protected by freedom of speech, it must be based on facts clearly proved to be true.

A Facebook user was granted an interdict from a South African court in a legal precedent, preventing a friend from posting about his personal life on the platform. This follows after the friend defamed the user in a Facebook post.

A former husband and his new wife bad-mouthed a woman on Facebook. The woman was awarded R40 000 in damages. Although the former husband didn’t create the posts, he was aware of them and allowed his name to be coupled with that of his new wife, resulting in joint liability.

The Commission for Conciliation, Mediation and Arbitration (CCMA) has had to rule on matters where employees post scandalous or damaging information relating to their employers.

Judgements over the years have concluded the following:

  • a person doesn’t need to be the original poster of the defamatory content to be held liable – sharing or repeating the content is enough to constitute defamation;
  • a person is equally liable for another person’s posts if they know they have been tagged in the other person’s post and allows their name to be connected to the post;
  • despite each comment or post appearing individually may seem harmless, a series of comments or posts published via social media may have a defamatory meaning when read together; and
  • posting an apology on the same social media where a defamatory statement was made may mitigate the damage to a person’s dignity and reputation.

Beware: if you share, like or retweet defamatory comments posted by others you may be held liable.

Hate speech

Any speech, gesture or conduct, writing, or display that is prohibited because it could incite violence or prejudicial action against a protected individual or group is considered hate speech. A protected individual or a protected group by law could be based on disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristics.

Freedom of expression is a constitutional right but not an absolute right. If what you publish on social media platforms negatively impacts the rights of others, you are likely to face serious consequences.

Dismissal

There has been a sharp increase in disciplinary action and dismissal for social media conduct over several years. The Commission for Conciliation, Mediation and Arbitration (CCMA) has dealt with cases where the dismissal was found to be fair based on the evidence taken from the social media sites.

Some of the grounds for dismissals included:

  • derogatory Facebook status updates
  • employees criticising management,
  • employees criticising the employer,
  • employees using social media to share internal matters of the business to former employees

The advice you need

If you need to know about your rights when it comes to social media and the law, get in touch with Dreyer Engelbrecht Attorneys INC.