Estimated reading time: 4 minutes
- Defamation, which is the unlawful publication of a statement that harms another’s reputation, has found a new and powerful medium on social media platforms.
- Defamation involves the publication of a statement, whether verbal or written, that is intended to harm a person’s reputation.
- In the context of social media, defamation can include publishing false information, making derogatory comments, or sharing misleading information that portrays someone, or an organisation, negatively.
- To combat the rise of false information and defamation on social media, South Africa has introduced the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023 (Act 16 of 2023), signed into force by President Cyril Ramaphosa on 9 May 2024.
- Employees must also be aware of the impact their social media activity can have on their professional lives. Sharing false information or making inappropriate comments online can lead to disciplinary actions, especially if their posts reference their employer or if they are publicly associated with the business.
In an era dominated by social media, the spread of misinformation and defamatory statements have become a significant concern for individuals and organisations alike. Defamation, which is the unlawful publication of a statement that harms another’s reputation, has found a new and powerful medium on social media platforms.
Employers in South Africa must now navigate this complex landscape, balancing the right to freedom of expression with the need to protect their reputation and that of their employees.
Understanding defamation
Defamation involves the publication of a statement, whether verbal or written, that is intended to harm a person’s reputation. For a statement to be considered defamatory, it must meet several criteria:
- Publication: The statement must be made public, either spoken or written.
- Intent: The person making the statement must have intended to defame another person.
- Harm and injury: There must be demonstrable harm or injury to the person’s reputation.
- Violation of rights: The statement must violate the person’s right to their good name, reputation, and dignity.
In the context of social media, defamation can include publishing false information, making derogatory comments, or sharing misleading information that portrays someone, or an organisation, negatively.
Read more about the organisational rights of trade unions here.
Legislative requirements
To combat the rise of false information and defamation on social media, South Africa has introduced the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023 (Act 16 of 2023), signed into force by President Cyril Ramaphosa on 9 May 2024.
The Act aims to uphold constitutionally enshrined rights such as human dignity, equality, and the right to freedom and security, while also addressing hate crimes and hate speech. This legislation complements existing employment legislation, such as the Employment Equity Act, 1998 (Act 55 of 1998) and the harassment code published under the Employment Equity Act.
The Act criminalises hate speech and hate crimes, allowing employers to take disciplinary action alongside any criminal proceedings against individuals engaging in such conduct.
Protective measures for employers
To safeguard against the dangers posed by social media, employers can implement several proactive measures:
- Social media policies: Develop and enforce comprehensive social media policies that outline acceptable behaviour and the consequences of defamation or spreading false information.
- Monitoring: Keep a close watch on social media channels for any negative or false statements about the business or its employees.
- Professional response: Address negative or defamatory statements promptly and professionally, correcting any false information as quickly as possible.
- Legal action: In cases of serious defamation, consider pursuing legal action to protect the business’ reputation.
- Disciplinary action: Take disciplinary steps in accordance with your social media policies against employees who engage in defamatory conduct. Ensuring that employees understand the serious implications of their online actions can help deter such behaviour.
Learn more about the importance of employment contracts here.
The role of employees
Employees must also be aware of the impact their social media activity can have on their professional lives. Sharing false information or making inappropriate comments online can lead to disciplinary actions, especially if their posts reference their employer or if they are publicly associated with the business. The guiding principle for employees should be to think carefully before sharing content online, as it could resurface in a disciplinary context.
Conclusion
As South Africa continues to embrace the digital age, both employers and employees need to remain vigilant about their online conduct. By implementing robust policies, providing training, and staying informed about legal developments, businesses can better protect themselves against the reputational and legal risks associated with defamation on social media. – Madeleine Ackermann, client relationship manager, LWO Employers Organisation
For more information, send an email to Madeleine Ackermann at madeleine@lwo.co.za or info@lwo.co.za, or visit www.lwo.co.za.
