Privacy is dead on social media - legal expert

Facebook is eyeing video growth. (Ducnan Alfreds, Fin24)
Facebook is eyeing video growth. (Ducnan Alfreds, Fin24)

Cape Town – Your musings on Facebook or Twitter are not private and you could be held accountable for inflammatory comments, says an attorney.

“We see more and more employees getting into trouble for posts they made on social media. The question is: Are employees then not entitled to their personal views and freedom of speech? The answer is not so simple,” said Wilmari Strachan, director and head of technology and internet practice area at Werksmans Attorneys.

While social media has captivated South Africans, some are still getting into trouble for postings about bosses on Facebook.

A 23-year-old administration clerk was fired for calling his boss a serial masturbator and a US teacher was let go for tweeting that she was “naked, wet and stoned”.

READ: Speaking out on Facebook could cost you your job

Strachan explained that you shouldn’t assume your social media accounts are private.

“There are two problems with this line of thinking. One: The network effect. It may be a private thought, but I share it with my 100 friends, who ‘like’ my post, so their 100 friends can now see it and then their 100 friends and soon a million people saw my ‘private thought’, which is now not so private anymore.

“Two: Association. As a director of a company (or even an employee) I am inevitably linked to the image of that company. I can state 'this is my personal views', but if I make a controversial statement, does it not indicate the mentality of the people that work at or manage the company that appointed me?”


In terms of South African law, an employee that expresses opinions on social media may be subject to both damages claims from the employer, as well as dismissal, said specialist technology attorney Russel Luck.

Employees may invoke a “Fair Comment” or “Truth and Public Interest” defence, which may insulate them from legal action.

In SA, an employee who, for example, publicly reveals that a company is knowingly selling a flawed product may be protected under the Protected Disclosures Act (No 26 of 2000) which protects employees acting in good faith.

If you are fired for utterances on social media, it is unlikely that you could get your job back. The legal relationship between employer and employee is based on good faith, said Luck.

"An employee-employer relationship is based on uberrima fides the utmost good faith. Where the trust relationship is broken, the employee may be dismissed. If the dismissal was found to be wrongful, the employee cannot ask for their job back and force the employer to re-employ them. They can get the employer to pay damages to them."

Strachan said that the line between private and public is fast disappearing as social media becomes part of societal engagement.

“I don’t believe there is such a thing as ‘private’ on the internet and definitely not on social media. What you say is public, it is in writing and it is there for everyone to see. The good old saying: ‘Think before you speak’ is just as applicable online - think before you post.”

Do you fear your Facebook posts may come back to haunt you? Let us know.

- Follow Duncan on Twitter

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