SOCIAL MEDIA A BANE OR A BOON

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Tweet, gram, poke, like, follow, DM, tag are now common terms used in our every day speech. A decade ago this social network speak did not exist. Like it or not, social networks are here to stay and are increasingly becoming a more prominent part of our lives. Young or old, it seems that there is no barrier to entry anymore. This article aims to unearth the legal implications of your conduct on social media and what to look for. Think before you type as it were...

IN FAVOUR:

Social media helps expanding knowledge to a much wider audience in the most cost-effective manner be it via posts, photographs or videos. It is easily accessible and available to everyone whilst having the option to voice your opinion freely.

People from around the world are contributing to society by using social media for good cause -  using hashtags or YouTube videos to either highlight a social issue or help a victim. The recent role of the #MeToo movement is an example of how something so simple can reach international waters and gain momentum and supporters.

AGAINST:

Social media encourages violent behaviour by easily spreading fake news that might hurt social sentiments or people of some repute. Social media is misused by many people to harass others. It also promotes cyber bullying that promotes violent human behaviour.

And so I have compiled a list of questions essential to a social media user’s knowledge:

QUESTION 1: Can I get fired for one of my social media posts?

Yes you can. If an employer finds the content that you have posted on social media to be offensive, racist, vulgar or anything of the sort, you can be tried in a court of law. If you share malicious content about your employer on social media, your employer can dismiss you as a breakdown in the working relationship (or a breach of trust) could have taken place.

An employee’s dismissal due to misconduct on social media can be founded on the two following principles: 

1      The impact the misconduct had on the working relationship of the employer, employees or among employees.

2      An action that causes the breakdown of trust of a working relationship.

As Du Toit says in Labour Relations Law — A comprehensive guide[ ]: “The cardinal test is whether the employee’s conduct has destroyed the necessary trust relationship or rendered the employment relationship intolerable.”

QUESTION 2: Am I held responsible for ALL of my posts?

Yes Even if you’re re-posting something offensive from another user, you are  just as responsible as the owner  of that post because it is now on your page for all of your followers to see. 

So if you see someone posting something offensive, be wary of reposting. Rather report the offensive material and let the law handle the rest.

QUESTION 3: Can I still be incriminated for what I post after work hours?

Yes As soon as you sign your employment contract, anything you say or do can be viewed as a reflection of your company. 

This means that if you post a picture on Facebook of you and your colleagues drinking while at a work event — even if that event is after hours — and were not permitted to do so, your employer has grounds to punish you, be it a written warning or a formal dismissal.

QUESTION 4: I’m a brand ambassador. What happens if I don’t make it clear that what I’m posting about is an advertisement?

With the announcement of the Advertising Regulatory Board’s[ ] new policy draft, influencers and brand ambassadors have been wondering what this means for their content. 

According to the new rules, ambassadors and influencers now have to make it clear when they are posting paid-for content or else this can be misconstrued and effectively be considered fake material. The aim of this is to ensure the protection of consumers and promote ethical conduct by brand marketers and the influencers that they make use of. 
If a brand has “paid” you to advertise a certain product or service, you must put a disclosure in your communication that shows that you have received something of value in exchange for the content. Whether it is by add #ad, #sponsored or #ambassador to your posts, you should make it absolutely clear that you have a relationship with the brand.

QUESTION 5: I have a right to privacy. Are these rights protected when it comes to social media?

According to Section 86 of the Electronic Communications and Transactions Act[ ], “a person who intentionally accesses or intercepts any data without authority or permission to do so is guilty of an offense”.

Although it’s not made clear in the Act, several cases have shown that the Act is ‘forgotten’ in cases where private data was accessed in order to provide evidence that a crime has been committed.

QUESTION 6: My brand used a Facebook / Twitter / LinkedIn / YouTube logo in an image. Is that illegal?

Each social media platform has its own rules and regulations when it comes to using their logos in content. It is vital that brands and individuals follow these rules — or face a lawsuit for committing copyright / trademark infringement.

In fact, no logo or trademark comes without any sort of copyright law unless it has yet to be (or isn’t) registered. Therefore, it’s never illegal to use a social media platforms logo, but you do need to follow the rules precisely before publishing it.

QUESTION 7: How can I stop people from posting my private content and claiming it as their own?

There are strict laws put in place regarding Intellectual Property in South Africa; however, actually claiming your Property rights  is quite a process and many brands and or individuals choose to veto it (too much effort), depending on the severity of the offense. 
But the question is whether you want to go through the whole rigmarole of litigation (likely to be trans-jurisdictional — in other words, involving many countries.

So yes, you can stop other people from posting your private content. But according to Sadlier and de Beer[4], “it might be easier to do the following: 

1      Write a letter asserting your rights and requesting that the infringement be removed – or else.

2      Report the offense to the website on which it occurred.

3      “Complain to your friends over some wine”.

4      &ldquo Forgive and forget. Move on”.

QUESTION 8: How can I protect my privacy on social media?

In short - you can’t. Well not entirely. For instance, have you read through Facebook’s Terms and Conditions? Perhaps not, which is why you never knew that you agreed to the platform being able to “use your content in any way it sees fit”.

However, to protect your safety you can do the following:

1      Disabling your location setting (such as ‘share location’) will stop users from seeing where you are and when you’re there.

2      Limit your audience settings by hiding your posts from the public by being selective in terms of who can see them. Facebook allows you to select who sees your posts by letting you choose either ‘Public’, ‘Friends Only’ and ‘Private’ as your default setting.

3      Hide your activity status. Many platforms give you the option of hiding your activity from other users. Keep in mind that, once you do this, you also won’t be able to see other users’ activities.

QUESTION 9: What is the decorum for sharing other user’s images on my own platform?

Using or sharing someone else’s images can be cause for a lawsuit. In order to avoid copyright infringement, you need to be sure to remember the following:

If you’re 
reposting an image from a particular social media platform, be sure to check their Terms and Conditions first. Note that each platform is different, so the same rules don’t apply every time. For instance, Instagram lets users share each other’s content (provided they mention or link back to the original user’s profile). Facebook’s license does not end upon the deactivation or deletion of a user’s account, content is only released from this license once all other users that have interacted with the content have also broken their ties with it (for example, a photo or video shared or tagged with a group of friends).

 

Petrushka Hemraj

Candidate Attorney



[1]   Labour Relations Law: A Comprehensive Guide 6th Edition Darcy Du Toit (Author)

[2] Advertising Regulatory Board of South Africa

[3] 25 of 2002

[4] Don rsquo;t Film Yourself Having Sex 2014: Emma Sadleir and Tamsyn de Beer

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