10 FAQs about social media law in South Africa

10 FAQs about social media law in South Africa

Ever wonder if a social media post could get you fired? Or, if you share an image from one of your friend’s pages, are you committing copyright infringement? It’s time to get some answers. media update’s Christine Beukes dives into 10 of the most frequently asked questions (FAQs) about the law of social media in South Africa.

 

Wee woo, wee woo. The police have arrived, and they’re interrogating you about the last post you sent out on Facebook — and you have no idea why. It was just an innocent joke about your new employer. They obviously did not find it that funny.

The thing about posting online is, you have to remember that your content is available to the public — despite your privacy settings.

You’re basically acting as a brand ambassador … for yourself. That means you need to be your own public relations manager as well and be ready to prepare for any crisis that may occur — and these crises could have legal implications.

The only way to prepare? Stay informed.

To help you do just that, here are the answers to 10 FAQs about the laws regarding social media in South Africa:

QUESTION 1: Can I get fired for one of my social media posts?

Yes, you can. If an employer finds the content that you have posted on social media to be offensive, racist, vulgar or anything of the sort, you can be tried in a court of law.

According to Abrahams & Gross, an employee’s dismissal due to misconduct on social media can be founded on the two following principles:

1. The impact the misconduct had on the working relationship of the employer, employees or among employees

So basically, if you post an inappropriate joke on your social media page for all of your colleagues and employer to see … you’re in trouble.

2. An action that causes the breakdown of trust of a working relationship

For example, if you take a ‘sick’ day (when you’re not actually sick) in order to go to a party — and those party pictures end up on social media — you’ve just broken the trust of your working relationship with your employer.

As Du Toit says in Labour Relations Law — A comprehensive guide: “The cardinal test is whether the employee’s conduct has destroyed the necessary trust relationship or rendered the employment relationship intolerable.”

QUESTION 2: Am I held responsible for all of my posts?

Yes. Even if you’re re-posting something offensive from another user, you’re just as responsible as the owner of that post because it is now on your page for all of your followers to see.

So if you see someone posting something offensive, be wary of reposting. Rather report the offensive material and let the law handle the rest.

QUESTION 3: Can I still be incriminated for what I post after work hours?

Yes. As soon as you sign your employment contract, anything you say or do can be viewed as a reflection of your company.

This means that if you post a picture on Facebook of you and your colleagues drinking while at a work event — even if that event is after hours — and were not permitted to do so, your employer has grounds to punish you in whichever way they deem fit (whether that be a written warning or a formal dismissal).

“Your relationship with your employer is a 24/7 one. We are all brand ambassadors in this digital era,” writes Helene Eloff in an article for The Citizen.

QUESTION 4: I’m a brand ambassador. What happens if I don’t make it clear that what I’m posting about is an ad?

With the announcement of the Advertising Regulatory Board’s new policy draft, influencers and brand ambassadors have been wondering what this means for their content.

According to the new rules, ambassadors and influencers now have to make it clear when they’re posting paid-for content.

The aim of this is to “ensure the protection of consumers and promote ethical conduct by brand marketers and the influencers they make use of”.

Basically, the Advertising Regulatory Board does not want to hear about another fake crash incident (although this one was deemed to be acceptable).

So what happens if your brand doesn’t comply with this policy? Well … bad things, we can only assume. You don’t want to be spreading fake news around, do you?

QUESTION 5: I have a right to privacy. Are these rights protected when it comes to social media?

It depends … According to Section 86 of the Electronic Communications and Transactions Act, “a person who intentionally accesses or intercepts any data without authority or permission to do so is guilty of an offense”.

Although it’s not made clear in the Act, several cases have shown that the Act is ‘forgotten’ in cases where private data was accessed in order to provide evidence that a crime has been committed.

QUESTION 6: My brand used a Facebook / Twitter / LinkedIn / YouTube logo in an image. Is that illegal?

Each social media platform has its own rules and regulations when it comes to using their logos in content. It’s vital that brands and individuals follow these rules — or face a lawsuit for committing copyright / trademark infringement.

In fact, no logo or trademark comes without any sort of copyright law unless it has yet to be (or isn’t) registered.

Therefore, it’s never illegal to use a social media platform’s logo, but you do need to follow the rules precisely before publishing — so remember to do your research.

Take a look at the trademark rules for FacebookTwitterInstagramLinkedInSnapchat and YouTube.

QUESTION 7: How can I stop people from posting my private content and claiming it as their own?

There are strict laws put in place regarding Intellectual Property in South Africa; however, actually claiming your Property rights is quite a process and many brands and or individuals choose to veto it (too much effort), depending on the severity of the offense.

“ … unless … complicated exceptions apply — you would in all likelihood have every right to sue for damages on account of infringement of your intellectual property.”

“But the question is whether you want to go through the whole rigmarole of litigation (likely to be trans-jurisdictional — in other words, involving many countries).” This is according to Emma Sadleir and Tamsyn de Beer, co-authors of the book Don’t Film Yourself Having Sex.

So yes, you can stop other people from posting your private content. But according to Sadlier and de Beer, it might be easier to do the following:

1. Write a letter asserting your rights and requesting that the infringement be removed — or else.
2. Report the offense to the website on which it occurred.
3. “Complain to your friends over some wine”.
4. Forgive and forget. Move on.

QUESTION 8: What’s the protocol for sharing other user’s images on my own platform?

Using or sharing someone else’s images can be cause for a lawsuit. In order to avoid copyright infringement, you need to be sure to remember the following:

Reposting from social media platforms

If you’re reposting an image from a particular social media platform, be sure to check their Ts and Cs first. Note that each platform is different, so the same rules don’t apply every time. For instance, Instagram lets users share each other’s content (provided they mention or link back to the original user’s profile).

Sharing another creator’s image on social media

If you’ve found an image on Google you’d like to share, be sure to check whether or not the image has copyright in place. To be safe, rather use or share a stock image that is available for reuse.

QUESTION 9: Someone is pretending to be me on social media. What do I do?

There are several things you can do if someone is impersonating you on social media, and there are varying levels of this offense (although some may be worse than others) — regardless, they’re all violations of privacy.

In most cases, if someone is impersonating you as an individual, you can report them on the social media platforms’ themselves, most of which require you to fill out a form and state your case.

Although, some are cause for defamation and can affect your brand’s reputation or even your business.

For example, if someone has created exact replicas of your social media pages and website and is impersonating your business (messaging clients and giving them false information, and then taking their money), it is best to get a lawyer involved.

QUESTION 10: How can I protect my privacy on social media?

Short answer — you can’t. Not entirely. For instance, have you read through Facebook’s Ts and Cs? Probably not, which is why you never knew that you agreed to the platform being able to “use your content in any way it sees fit”.

“Facebook can transfer or sub-license its rights over a user’s content to another company or organisation if needed,” says Telegraph writer Oliver Smith.

“Facebook’s license does not end upon the deactivation or deletion of a user’s account, content is only released from this license once all other users that have interacted with the content have also broken their ties with it (for example, a photo or video shared or tagged with a group of friends).”

However, not all is lost! There are precautionary measures you can put into place in order to keep your profiles as private as possible.

Here are a few tips to take note of:

  • Hide your activity status. Many platforms give you the option of hiding your activity from other users. Keep in mind that, once you do this, you also won’t be able to see other users’ activities.
  • Disable your ‘read receipts’. This will stop other users from seeing whether or not you’ve read their last message on social media. (no more dreaded ‘blue ticks’ on WhatsApp…)
  • Disable your location settings. Disabling your location setting (such as ‘share location’) will stop users from seeing where you are and when you’re there.
  • Limit your audience settings. Hide your posts from the public by being selective in terms of who can see them. Facebook allows you to select who sees your posts by letting you choose either ‘Public’ ‘Friends Only’ and ‘Private’ as your default setting.

 

Source Media Update

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