1

Social networks, the internet and privacy in the

workplace

Prof B Grant (UKZN)

2

1. INTRODUCTIONThe increasing use of the internet as a form of communication raises new challenges for employers:-

- the use/ abuse of computer and network resources at work;

- the nature and content of the communication; and

- ways to monitor the communication.

3

2. The RIGHT TO PRIVACYS 14 (d) of the Constitution provides that

everyone has the right to privacy, including the right not to have the privacy of their communications infringed

- employees have some expectation of privacy, even in the workplace

4

Right to be privacy in employment may be limited by:

Regulation of Interception of Communications and Provision of Communication-Related Information Act No. 70 of 2002 (RICA):

* S 5 – if employee has given prior written consent

5

* S 6 - a person conducting a business may intercept communications to monitor or to investigate unauthorised use

- includes emails, telephones conversations, accessing of websites

6

- Protea Tech. Ltd v Wainer and Others

* employee telephone communications were tapped by employer

* held: employee may receive and make calls which have nothing to do with his employer’s business.

7

* although s/he must account to his/her employer if so required for the time so spent, the employer cannot compel her/him to disclose the substance of such calls.

* the content of conversations involving the employer’s affairs (whether directly or indirectly) is a different matter

8

* the employer is entitled to demand and obtain from an employee a full account

* `In this sense also, the company can fairly be regarded as the owner of the knowledge in the employee’s mind.’

9

* the employer has an interest:

- not only in the substance;

- but also in the manner in which the employee conducts himself

- (whether by word or gesture) in carrying on his business

10

3. SOCIAL NETWORK SITESSNSs are web-based social network sites

that allow individuals to:

- construct a public or semi-public profile;

- invite a list of other users to share a connection; and

- view their list of connections and those made by others within that system.

11

- e.g. Facebook, Myspace, Twitter, Skype, blogs

`A high tech cross between a bumper sticker and a diary, digital profiles commonly broadcast personal philosophies and preferences, as well as everything from artistic creations to the mundane details of everyday life.’

P Abril

12

Difficulties for employer:- nature of the medium: public – if posted

as a status, and public if sent to group of friend who pass it on to other friends

- allows for personal expression without the benefit of editorial restraint

- high level of potential, quick harm to the employer’s business interests

13

4.CYBER MISCONDUCTPossible Misconduct:

(1) abuse of employer’s resources

- may occur where there is a policy which prohibits employees from using the employer’s resources for private purposes

14

- including company time

- Latchmish v Billiton Aluminum

* found guilty of misconduct for repeatedly accessing pornographic sites during working hours

15

(2) dissemination of offensive or abusive material

- racist; defamatory; sexist; pornography.

- Edgars v CCMA

* LC accepted that the sending of a racist joke to colleague was grounds for dismissal.

16

- SACCAWU obo SIKHUNDLA v Radisson Blu Hotel

* racist comments are not only offensive, but they create disharmony amongst employees

17

(3) bringing the company into disrepute

- Timothy v Nampak Corrugated

* misconduct is it has the potential, at the very least, to call into question the reputation of the employer

18

- FOSAWU v Gold Reef City Casino

* employee was suspended for misconduct and posted a status on Facebook that he was dismissed because he was gay

* it falsely created the impression that the employer violated Constitutional rights

19

- Media Workers Association of SA v Kathorus Community Radio

* posted Facebook comments that Board was corrupt and that manager was a criminal

* dismissal fair

20

- Sedick v Krisray (Pty) (Ltd)

* posted derogatory comments about managers to each other

* found them guilty because the comments could be circulated both inside and outside the company (customers, suppliers and competitors)

21

- Some comments, however, cannot be said to bring the company into disrepute

- COSAWU on behalf of Khumalo v Royal Ascot Superspar

* the expression of individual political views does not bring the company into disrepute

22

(4) creating disharmony in the workplace

- Mahoro v Indube Staffing Solutions

* accepted that messages posted on Facebook may create disharmony

* employer failed to prove the offended employee was the subject of the discussion

23

(5) Breach of trust

- E Booyse v Veilile Tinto Cape Inc

* employee was dismissed for posting a photograph of herself attending a function of the competitor

- might also occur where employees post information about activities having lied to the employer re: their whereabouts

24

5. CONCLUSION

- despite a range of cases where employees are dismissed, there are still many employees posting unedited information on SNSs

25

- employers need clear policies on what is acceptable behaviour

- employees need to be aware of the consequences of venting publicly and the limits of privacy in the workplace.

26