Cape Town – Social media is part of the modern fabric of interaction, with some reports suggesting that 66% of users spend time checking social media accounts while at work.
Industry tracker Mediakix suggests that popular platforms YouTube and Facebook consume one hour 15 minutes per day.
But when you leave your company, who owns your Twitter, YouTube, Facebook or even Gmail account? Legal experts in SA say the
law is not clear.
“This is a grey area, and it would really depend on a thorough investigation of the history, purpose and origin of the social media account in question,” Pamela Stein, head of Employment Law at Webber Wentzel told Fin24.
“In order to demonstrate ownership, the employer would have to show that the social media account was clearly created for the purposes of promoting the growth of the business, and that this growth was achieved by social media activity generated during company time.”
She added that factors over the ownership of a social media account would depend on whether the account had been created as part of the employment contract, or for the purpose of growing the organisation’s profile.
Unlike a company cellphone, computer or car, a social media account does not only exist on a mobile device, and the law assigns protections of personal information, as described in the Protection of Personal Information Act, which forbids unwanted sharing and exploitation of personal information.
“You have rights over your identity. However, if there was a clause in the contract of employment saying any personal account created during their employment is the property of the employer – perhaps the employer would have rights to it,” specialist technology attorney Russel Luck told Fin24, though he was careful to agree that the matter is not a settled one under South African law.
“If these accounts were set up so the employee could engage with the public as an extension of his work services, then perhaps the employer would have rights over it. Even more so if the email address used to verify the social media account is a work email, not personal one,” he added.
This reflects a US case in which Phonedog sued former employee Noah Kravitz over marketing on his Twitter account. The company alleged that 17 000 Twitter followers Kravitz had amassed was a customer list and demanded damages of $340 000.
A News24 survey revealed that 53% of social media users accessed the platforms while at while at work, and 3% said they would like to, but were not allowed.
Personal logins demand
Stein said that in SA, an employer seeking to claim a social media account would have to show just cause.
“Firstly, the employer would have to establish a basis for such a claim, and then sue the employee in the appropriate court depending on the cause of action.
“The employer could seek an order prohibiting the employee from any further use of the social media account and requiring the employee to take all reasonable steps to return the social media account to them.
“In addition, all social media sites allow users to report breaches et cetera and once such an order is obtained the social media platform could be notified and requested to assist.”
However, Luck argued that for a local company to demand personal logins to social media accounts would be a contravention of South African law.
“On the other side of the coin, SA law does follow international trends that you don’t need to give your employer your login details to your personal Facebook account – ie it’s unlawful to force an employee to do this.
“Where employers are making employment, promotion, dismissal or labour decisions based on access (or lack of access) to the personal Facebook account of an employee it would amount to unfair discrimination.”
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