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Speaking out on Facebook could cost you your job

11 February 2015, 08:13 Duncan Alfreds

Cape Town - In the words of the Black Eyed Peas, "Just shut up, shut up": It may be better to guard your opinions on social media - and keep your job, according to a law expert.

While social media platforms are known for spurring everything from active debate to downright name-calling, employees place themselves at risk by expressing views with which employers may not agree, says a legal expert.

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, according to specialist technology attorney Russel Luck.

In law, an employee may invoke a "Fair Comment" defence, but this is subject to particular conditions.

"The statements complained of must constitute comment as opposed to fact; the factual allegations being commented upon must be true; the facts upon which comment is expressed must be truly stated; the comment must be honestly expressed, without malice; the comment must relate to matters of public interest," said Luck.

Legal defence

In the context of an employee speaking about the employer on social media, the worker may be exposed to damages because of how "malice" may be interpreted.

"In practice, there would seldom be a situation where the employee could be said to be speaking without malice. The mere fact that he is raising these issues in a public forum rather trying to ventilate them internally, is malicious and damages the reputation of the employer," said Luck about the internal grievance procedure in companies.

A second defence for an employee is "Truth & the Public Interest", but it is dependent on factual statements and public benefit from these statements.

However, even if these requirements are met, it doesn't follow that an employee may escape being fired.

"This might be enough to escape litigation from the employer for damages. However, the employer could certainly dismiss the employee for those statements," said Luck.

For example, while retweeting Dr Richard Dawkins may be construed as true or fair comment, that tweet may not be acceptable to a politically conservative management and break trust between employer and employee.

Tweets by evolutionary biologist Dr Richard Dawkins are viewed by some as offensive.

Political statements are particularly troubling because while a company is not the generally accepted view of a political entity, many people who work at a firm may hold serious political views.

'Good faith'

Internationally, social media has proved a landmine as people get themselves into trouble for postings that are deemed offensive and harmful.

A man in the Indian state of West Bengal used Facebook to blackmail a girl after he filmed the two of them having sex. He was arrested after posting the video online.

Jake Newsome in the UK wrote on Facebook that he was glad a teacher at Corpus Christi college in Leeds was stabbed. He was arrested over the offensive comments.

"I think that social media users need to wise up a little; they need to become a little bit more sensible as digital citizens," social media consultant for Afrosocialmedia Samantha Fleming told Fin24 recently.

On Facebook, a number of groups espouse their own political views.

A similar scenario might apply if the employer joins and shares content from The Atheist Republic on Facebook, for example.

Some employers may find content shared from groups such as Atheist Republic offensive and fire employees because of it. (Duncan Alfreds, Fin24)

"Political views depends on context and nature of employer's business. Either of the two defences above might protect the employee from damages claims by the employer. But the employer might legitimately be allowed to dismiss the employee for saying them," said Luck.

And 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."

- Follow Duncan on Twitter

- Finance24


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