SOCIAL MEDIA RIGHTS: EMPLOYER VS EMPLOYEE

Social media use has drastically altered our concept of privacy, but what effect does this have on the employer–employee relationship? As companies are increasingly monitoring not only their employees’ social media activity, but also that of prospective employees’, it has been argued that this is an invasion of privacy that may lead to discrimination. 

Employers have a substantial interest in safeguarding their carefully constructed reputation and goodwill, and poor social media conduct by an employee who is known, or presumed, to work for a particular business could undermine the reputation of the company. If an employee uses crude language or engages in hate speech, defamation, or other harmful behaviour on social media, such conduct could damage the employer’s reputation by association. 

There are many examples of employees engaging in behaviour that could cause brand damage and/or breach employment guidelines, ranging from complaining about their employers on social media to disclosing the employer’s confidential information. Certain online behaviour also has the potential to open the employer up to a case of vicarious liability if the employee is seen to be engaging in damaging behaviour in the course or scope of their work.

The risk of having their reputation marred and the possibility of legal action seems cause enough to warrant employers keeping an eye on their employees’ social media activity. This notion is supported by several cases that have come before The Commission for Conciliation, Mediation and Arbitration (CCMA), where it was commonly found that dismissal on these grounds was fair, or, at the least, that disciplinary action was warranted. 

Many employers monitor employee social media in an effort to ensure that the proprietary interests of the business are not divulged online. The employer has a right to the confidentiality of certain information and processes, and employees revealing such information can cause significant harm to the business. This extends to employees disclosing information about other employees and customers.

Again, this behaviour has been found to be grounds for disciplinary action and fair dismissal.

Social media monitoring of prospective employees is on the rise with many employers now conducting social media checks when evaluating potential new hires. It has been argued by some that this practice may lead to discrimination and employers are advised not to reject candidates based on factors such as age, religion, sexual orientation, etc., and to ensure that their reasons for rejecting an applicant are legitimate.

In most instances, employers aren’t merely looking for behaviour that they personally disagree with, but rather for any information which has the potential to harm the interests of the business, such as obviously discriminatory behaviour, illegal activity, or signs that an applicant may have lied about their history or padded their CV. If job candidates are prepared to share their information freely online, then potential employers have every right to access it, provided the employer does not engage in prejudice based on the restricted reasons for discrimination, there is no reason why this monitoring should be viewed as unethical. 

Apart from the mentioned reasons for monitoring, it is worth noting that many businesses now also use social media monitoring as a way to conduct personality and morality assessments of their employees on an ongoing basis. As long as it is justified by relating it to job duties and performance, it is not viewed as an invasion of privacy as, again, the employee has freely posted to social media.

As there are a variety of ways in which an employee’s online behaviour can impact their employer’s business, this seems to grant employers great interest in monitoring employees’ social media activity.

It has been argued that employee social media monitoring is an invasion of privacy and an infringement of their constitutional rights. While it is true that section 14 of the Constitution grants every individual a right to privacy, it is important to understand the limitations thereof. 

The right to privacy, however, is not an absolute right and must be weighed against other rights. This means that an employee’s right to privacy must be weighed against the employer’s operational requirements, thus creating parameters within which an employee may exercise their right to privacy. 

The ‘right to privacy’ issue is further complicated by the fact that the act of voluntarily posting on social media effectively limits the employee’s ability to rely on this right. It is widely accepted that, even with strict privacy settings, any information posted on social media is easily accessible by the public. As such, an employer is not infringing on an employee’s right to privacy if they posted something in a public sphere.

This view is supported by South African case law, which states that an individual’s claim to privacy is automatically reduced to the extent of the individual bringing their private life into contact with public life or into propinquity with other protected interests. In essence, if an employee posts something in the public domain, they cannot argue that they have a legitimate expectation of privacy, thus an employer is not infringing this right.

Overwhelmingly, case law seems to support the notion that employers are well within their rights to monitor their employees’ social media activity, provided that this does not form the basis for discrimination on prohibited grounds. For this reason, we should all take care and exercise common sense when interacting on social media, keeping in mind that the Internet has a long memory and little to no respect for privacy.