Companies liable for staff social media posts

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The Facebook Inc. logo is displayed an Apple Inc. iPad Air past water droplets in this arranged photograph in Washington, D.C., US, on Monday, Jan. 27, 2014.

CAPE TOWN – “It wouldn’t happen here!” is hardly a decent basis for a risk policy, and ignorance is seldom a good defence.

Nastascha van Vuuren, a director at Werksmans Attorneys, on Tuesday said that South African businesses that didn’t have up-to-date social media policies should consider themselves forewarned, referring to a number of historical cases abroad where companies had been held vicariously liable for statements posted by employees on online networks and in social media.

In the UK, for example, in the case Otomewo versus the Carphone Warehouse, two employees posted the status update, “finally came out of the closet. I am gay and proud”, on the claimant’s Facebook page without his knowledge. The court found the employer to be vicariously liable for the conduct, which amounted to harassment on the grounds of sexual orientation, because the actions took place during working hours and involved dealings between staff and a manager.

Similarly, in the US, in Blakey versus Continental Airlines, the court found an employer vicariously liable for harassment in a case where the plaintiff claimed that she was sexually harassed by fellow pilots posting defamatory and false statements about her on an electronic bulletin board used by the employer’s pilots.

It is important to remember, notes Van Vuuren, that employers can also be held vicariously liable for the actions of employees that take place outside the workplace and out of working hours, if they concern the employer or employees.

Van Vuuren urged companies to formulate and circulate clear guidelines on the extent to which employees may use the internet and social media during work hours, as well as what is and what is not considered appropriate content. In addition, the employer should make it clear to employees that by using social media on company equipment and during work hours, employees waive any rights to privacy so that monitoring can take place.