legal cases from Facebook usage rise
In South Africa, Duane Brady lost his job and faces criminal charges after posting allegedly defamatory messages on Facebook. In Canada, a woman off work for depression had her sick benefits suspended after she posted pictures showing her out, about and happy.
A United States commander based in Kosovo was demoted after his personal blog discussing sado-masochism was exposed. Social networking sites have also been used by war crimes investigators.
“Social networking gives a false sense of camaraderie and family,” Liza van Wyk, CEO of major South African training organisation AstroTech, which offers an “IT and the Law” course said. “Many feel that their 1 000 new best friends on Facebook are a safe community and so they type information or post pics that are often ill-advised. We’re seeing increasing numbers of companies coming to courses trying to navigate their way around rapid changes in information technology law or those laws that apply to it. And how Facebook is used is a real concern.”
Duane Brady was the first South African charged for posting defamatory messages on Facebook about his boss. Brady was arrested after his comment was reported to the police. He was charged with crimen injuria and common assault. Crimen injuria is a criminal offence committed when a person deliberately injures another’s dignity.
Other charges that relate to Facebook cases have been around defamation or libel which essentially relates to publication, in any medium, to two or more people something that demeans another in the estimation of his or her peers.
But there are other ways Facebook and social networking aids cyber-cops.Natalie Blanchard an IBM employee in Quebec, Canada was off work with depression and then noted her sick benefits stopped. When she asked why, her medical aid, Manulife Insurer, said they had seen photos posted since she had taken time off work at a party, a Chippendale’s show and a beach holiday and in all she looked happy. Manulife confirmed that it regularly trawled social networking sites looking for those who abused benefits. The case will be heard in the Quebec Superior Court in Canada on 8 December.
Warren Weertman who is one of South Africa’s top IT lawyers (he has also been involved in helping draft legislation), facilitates the AstroTech “IT and the Law” course. He says a wide range of laws can apply to social networking. “If you are in an employer, employee relationship, not just Facebook but blogging, you have to remember to always act in the employer’s best interest, that is a common law compulsion.”
You should also take into account the Regulation of Communications Act, he says, which allows employers to intercept and monitor communications, this includes what you post on your blog, emails, telephone calls, internet activity and faxes. “Copyright laws also apply. Employees should not disclose company information it can be subject to the Copyright Act. And disclosing other company information could be a breach of an employee’s fiduciary duties.
“If you post: ‘my boss is an idiot’ or write something criticising the policies of the company you work for, you are bringing them into disrepute and that is unlawful.”
Weertman says, “What I normally advise employees and employers to do is to have clear policies and procedures around blogging and social network pages. Establish guidelines around what you can do and what you can’t. We need to make employees aware that if they infringe policy there will be consequences and those must be spelt out. It is very important that companies put their policies and procedures around social networking on the company intranet site to ensure employees are aware of them.”
Examples of aspects corporate social networking policies should consider having include:
1. You may not divulge company sensitive information.
2. You may only access Facebook before work, after and during lunch (unless an individual is involved in marketing or networking the company through social networking sites such as Facebook, Twitter, MXit, or blogs).
3. If people want to blog they must have a manager’s written authorisation where it is related to work.
4. Employees need to be aware of the fact that if they have something on a private blog it does not reduce their liabilities. If their conduct is considered inappropriate for their status, they may find their employer taking action against them, for example, a company involved in selling products to a primarily black market would not be happy if a key employee or one in the public eye revealed he or she was a Ku Klux Klan member.
Although many companies have banned Facebook, as an example, there is a growing body that advise controlled access to social networking, especially for marketers. Van Wyk says, “companies need to assess what their needs are. Some might encourage client relationship managers and key executives to use LinkedIn, as an example, because its focus is on business networking.
“The other thing companies are concerned about is that Facebook uses considerable bandwidth with lots of photographs and videos. Extensive use of videos as an example eats into bandwidth and could bring the company to a halt.” Van Wyk advises that companies explain to staff why they do not want them to use Facebook, or limit its use. “Tell staff why you are limiting Facebook, that productivity at work is important, but too that there are bandwidth considerations.”
Weertman said a growing trend was among companies to start internal faux-Facebook sites to encourage departments to communicate better and to build team and staff loyalty.
Melissa Moore of the Freedom of Expression Institute said: “Nothing is a secret anymore, and the rate at which the world finds out these secrets has just been amplified by social media.”