Social media represents one of the most significant developments in human communication and has undoubtedly changed the way we interact and share information. Social media has become a prevailing presence in our lives, including the workplace, and therefore poses a significant risk to the reputational integrity of employees and employers, advises legal director, Advocate Tertius Wessels from Strata-g.
“We’ve already seen how social media rants and utterances can get people from all ethnic backgrounds into trouble. But, the reputation of a company may also be called into disrepute when an employee makes inappropriate, insensitive or racial comments or remarks on social media, even if it does not have anything to do with the employer.
“Even if you are posting something on social media in your personal capacity, outside of ordinary working hours or whilst using your own personal devices, if that post can be construed as inappropriate and a link can be drawn between that person and their employer, the employer has the right to take disciplinary action,” Wessels explains.
Each case has to be determined based on its own merits; however, employees stand to lose more than just their jobs or reputation when the Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill) passes into law. The Bill provides that an act of hate speech is one which is perpetrated by an individual who intentionally publishes, propagates or advocates anything or communicates to any person in a manner which could reasonably be construed to demonstrate a clear intention to:
According to the Department of Justice and Constitutional Development, the Bill will:
Critics have called the Bill unconstitutional, stating it infringes on the individual’s freedom of expression, which is enshrined in the country’s Constitution.
But Wessels says, although the Constitution makes provisions for freedom of speech, the country’s laws are not absolute and need to be balanced against each other.
“Freedom of speech may be protected, but that protection does not extend to hate based on race, ethnicity, gender or religion. One has to look when talking about different people’s constitutional rights to which extent that constitutional right potentially impacts on someone else’s rights - namely the right to dignity.
“Employers, in looking to mitigate the possibility of harm or loss occurring as a result of employee’s comments or remarks should actively educate their employees on the company’s social media policies, and if none are in place move towards having such policies in place. Employers should also regularly conduct workshops on disciplinary codes, grievance procedures, as well as the use of social media and behaviour acceptable in the workplace. And employees should think long and hard before pressing ‘post/tweet',” Wessels concludes.
How times have changed. Social media marketing has evolved from being a bit of fun on the side to an absolute must-have for all businesses that want to remain relevant. Social media isn't just fun and games, though: it gives you access to personal information like never before. The big question is how the rules of PoPI apply when using social media for marketing and client service platforms.Whose data is it anyway?
The main impact that PoPI has on your social media activities is that all data collected from the various platforms is governed by the Act, even though the information was publicly available. If, for instance, you grab a client’s phone number from LinkedIn to implement his or her investment, you will be obliged to protect the data thereafter.
P is for privacy (and policy)
Some customers unwisely expose their personal information such as their identity numbers on customer service pages. It’s essential to remove the information immediately when this happens and start up a personal conversation by phone or email. The process of switching to a private conversation needs to be very clearly incorporated into your company’s social media policy. And, if a third party such as an ad agency manages your social media pages, it’s essential that they’re aware of the Act and abide by the principles of privacy.
Tweeting under the influence
One of the Act’s aims is to ensure that personal information is used only for its original purpose. This affects the rights to the use of the data on influencer’s followers. Although you may pay an influencer to promote your brand, PoPI regulates that their followers’ data cannot be used for other marketing purposes. On a related legal note, it’s important to specify who owns the content that influences post. It’s also essential that they clearly display that they are being paid to market the company or brand.
Beware sudden lane changes
Another PoPI challenge comes when a business changes how it uses a particular platform. For instance, a Facebook page which was initially used for customer service queries may, over time, evolve into a sales platform. Clients can easily unfollow you if they don’t want the sales information, but PoPI says that the onus is on the business to first gain permission from an individual. In short, businesses need to communicate upfront that by using the platform for customer services, customers grant the business permission to send them different kinds of information.
This also relates to the data gained from competitions on social media. Participants need to know that by entering the competition they grant the business the right to send them marketing material. Alternatively, the data should be destroyed after the competition.
Thou shalt be hacked
Another of PoPI’s objectives is to ensure the safety of customers’ data as security breaches are forever on the increase. A recent survey conducted in the US by PWC showed that 90% of large organisations suffered a security breach in 2018 and that 59% of employees steal proprietary data when they quit or are fired.
It’s no longer a question of whether you’ll be hacked, but how you’ll be hacked.
McDonald’s corporate Twitter account was hacked, and a message posted calling Donald Trump a “disgusting excuse of a president with small hands.” McDonald's made a public apology, despite a generally positive response to the tweet.
So, be sure to check the company’s security settings on each platform and use excellent anti-virus software. You should also scan and decode links to make sure they’re the real thing and adopt a very strong password policy.
Big data can’t be personal
Big data analytics has helped many businesses strike a balance between optimising their marketing efforts and not annoying customers with unsolicited communication. However, in order to continue to maintain this balance and provide customers with the information they want, they do need access to as much data about their customers as possible. The trick is that a lot of this information is personal, meaning that the process of analysing data may not be in keeping with PoPI.
Don’t panic, though. Businesses can still get excellent results from analytics without viewing personal information. There are excellent software solutions which hide sensitive data from the analysis but still yield very useful results. Businesses can also implement asset control so that only those with the right permissions can access personal information.
Clouding the issue
One of the most interesting aspects of PoPI to consider is the offshore storage of data where PoPI doesn’t apply. If you’re a Facebook user, for instance, your data is most likely stored in Forest City, North Carolina – a place which has the dubious distinction of being home to more computer servers than people. (Cloud hosting is also tricky with regards to PoPI but that is a topic for another day.)
A word of warning for individuals
On a personal note, do remember that if you’re active on social media and publish personal information, you won’t be able to turn to PoPI or your constitutional right to privacy if the information gets into the wrong hands.
This article has detailed just a few of the ways in which PoPI impacts social media… telling the whole story would fill a lengthy tome! That’s what it makes a lot of sense to appoint a PoPI compliance officer to work with a specialised lawyer and IT provider to structure a system and determine policy and procedure to ensure your company is compliant with PoPI. Social media isn’t a game anymore.
LINDA GRAHAMFinancial Planner at FinCommunications
Marijuana has been Legalised in South Africa by the Constitutional Court. See the full judgement for can do's and do nots.
How to Respond to a Police Search
A routine stop or search can turn nasty. Have you thought of your rights and how you should handle a police search?
Because the police have wide authority and rights above those of ordinary citizens, it's hard to know what your legal rights are when it comes to a police search or seizure.
1. Ask for Identification
The first thing you need to know is that the police are required to have identification visible. In other words, you should be able to see their names on their uniforms.
If this is not the case, you may ask to see identification, to confirm that you are actually dealing with an officer of the law.
The police are within their rights to pull you over if you're driving, whether or not they can indicate a clear reason for doing so. However, they must have a valid reason to search your person or possessions, including your vehicle. Specifically, they must have reason to believe that you have been involved in some kind of illegal or criminal activity − sufficient to argue that a judge or magistrate would be willing to offer a search warrant in court.
Note that according to case law, an officer cannot search someone's person, house or car simply because they believe the person is "suspicious". This will not hold up in court. The police cannot arbitrarily search you or your home without being given specific legal authority to do so. You can therefore ask the officer what grounds they have to believe a search is necessary.
If you are feeling threatened or harassed, it's wise to take note of as many details as possible. In addition to the time and place, and the officer's name and station or branch, memorise the license plate number and look for the code printed on the side of the police vehicle. Letters represent the name of the station, while the digits are the squad car number
3. Rules for raodblocks
In the case of a roadblock, search and seizure is already sanctioned. You may not refuse the search. But you can ask to see the written authorisation for the roadblock, given by the National or Provincial Police Commissioner, before you submit to the search. If, for any reason, you are not convinced of the validity of a roadblock, or if you feel unsafe, you can request to be taken to the nearest police station.
Note that body searches can only ever be undertaken by officers of the same sex as the person being searched. For instance, if a woman is pulled over and there is no woman officer to do the search, no search can proceed until a female officer arrives.
The police can arrest a citizen on the strength of a warrant of arrest, if they witness the person committing an offence or if they have probable cause to believe the person was involved in a crime.
The police have the power to arrest anyone who they have seem committing an offence in their presence; anyone they suspect of having committed a crime; anyone in possession of property they suspect has been stolen; anyone encountered at night in suspicious circumstances suggesting a crime has been, or is about to be, committed.
5. Your reaction to being arrested
If you are approached by a police officer wanting to detain you, remain calm and cooperate. Don't try to flee, become aggressive or offer a bribe. If you try to resist arrest, the officer may use reasonable force to arrest you.
When being arrested, note that:
A police officer may not verbally or physically abuse or intimidate you. They may not threaten you with violence or assault you. If they do, remain calm. You can report it at any police station afterwards. Note that you do not need to report it at the station of the officer in question.
If you have been assaulted while being searched or detained, you may take action for civil damages against the police in question and the Minister of Safety and Security.
If you're detained and injured as a result of assault, ask to be seen by a district surgeon, who should take note of any injuries. This is often the only evidence you can gather because your only witnesses may be the police themselves.
The decision to mediate, and when, can be a matter of strategic and fundamental importance in resolving a dispute and should be given full consideration in each situation. Even where mediation is prescribed, by court or contract, for example, a considerable amount of preparation, planning and strategy is required. This is where a legal representative who is fully versed in the mediation process can prove to be invaluable.
Unfortunately, in South Africa, and in many other countries around the world, the mediation process is often considered to be a ‘soft option’. This is quite untrue. Mediation requires a significant amount of hard work from participants and their representatives to achieve an outcome that is acceptable to both.
Your legal representative should properly understand the benefits of mediation, how it can be used to resolve a dispute, and should know when mediation is appropriate. Some legal representatives may even be able to guide you through the mediation process.
Some of the roles that legal representatives play in mediation are that they:
The success of mediation depends, to a large extent, on strict confidentiality and on your willingness to participate in an active way.
It’s a good idea to involve your attorney, particularly if he or she is open to being collaborative and is also open to helping you to solve the issues at hand.
Timothy van Rooyen Port Elizabeth Attorney, He has extensive knowledge in the industry, being a former prosecutor, he has experience in Criminal Defence.