Social Media and Employment

2016-05-25 23:26

With the increase of users of social media platforms across all major platforms ( Facebook, Twitter, YouTube and Instagram) that's according to,  Web Africa's A Snyman.  it is no wonder issues of privacy and employment will somehow surface. The use of social media not only speaks to those who are seeking employment, but those who are currently employed.

Social Media and Employment

What follows is a brief overview of what constitutes privacy in the context of social media and what employers can do when dealing with misconduct related to social media.

In the case of Gaertner & Others v Minister of Finance and Others, 2014, a Constitutional Case, privacy was relayed as followed: "Privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks."

The reason why privacy and what it means must be clarified, is that often times when employers seek to take disciplinary action against employees regarding their misconduct relating to social media, the most commonly used defence is that of privacy.

The right to privacy is the defence which was used in the unreported case of Harvey v Niland & Others it was held that the Electronic Communications Act was silent on the admissibility of evidence obtained in contravention of the principle of privacy as envisaged in s14 of our Constitution and under such circumstances the court will have the discretion to determine whether such evidence will be deemed admissible or not. The court considered factors such as, reasons why the evidence was unlawfully obtained, the nature of the evidence, availability of lawful means and the extent to which the right to privacy was violated.

In summary a former employee Niland had resigned, but was still a member of the Close Corporation (Huntershill) when he took become employed at Thaba Thala, a competing safari tour company. The remaining member of Huntershill, Harvey obtained Niland's Facebook  password and accessed Niland's account and printed out the information which Niland posted relating to his move to a new company which adversely affected Huntershill's reputation.

The court found that the information was obtained unlawfully in violation of Niland's right to privacy, however the right to privacy is not absolute. This does not mean that a person's right to privacy may be violated or that we lose it, it simply means that a person's right to privacy is weakened depending on the manner in which a person conducts themselves.

Though the above case does not speak directly to the employment relationship, its handling of the principle of privacy and social media is apt and should assist both employees and employers regarding the use of social media and its repercussions.

It also informs us that because privacy is not absolute, employers may be entitled to use information which cannot be obtained in any other way in order to protect its reputation. Employers are however cautioned regarding the manner in which they obtain such information, as any information  obtained unlawfully within the social media context will be subject to the discretion of the court.

- @mamaroala

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