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Social networks, the internet and privacy in the
workplace
Prof B Grant (UKZN)
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1. INTRODUCTIONThe 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.
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2. The RIGHT TO PRIVACYS 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
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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
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* S 6 - a person conducting a business may intercept communications to monitor or to investigate unauthorised use
- includes emails, telephones conversations, accessing of websites
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- 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.
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* 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
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* 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.’
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* 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
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3. SOCIAL NETWORK SITESSNSs 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.
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- 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
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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
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4.CYBER MISCONDUCTPossible 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
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- including company time
- Latchmish v Billiton Aluminum
* found guilty of misconduct for repeatedly accessing pornographic sites during working hours
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(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.
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- SACCAWU obo SIKHUNDLA v Radisson Blu Hotel
* racist comments are not only offensive, but they create disharmony amongst employees
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(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
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- 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
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- Media Workers Association of SA v Kathorus Community Radio
* posted Facebook comments that Board was corrupt and that manager was a criminal
* dismissal fair
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- 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)
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- 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
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(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
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(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
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5. CONCLUSION
- despite a range of cases where employees are dismissed, there are still many employees posting unedited information on SNSs
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- 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.
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