Social networks, the internet and privacy in the workplace

1. Social networks, the internet and privacy in the workplace Prof B Grant (UKZN)

2. 1. INTRODUCTION The 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 PRIVACY S 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 SITES SNSs 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 MISCONDUCT Possible 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.