Do we need social media laws?

social-media-picHi all,

By now we all probably know what social media is and what it is all about. There are literally hundreds of social media platforms, from LinkedIn to FaceBook, Twitter, Pinterest, Google+, and many more.

Businesses use it to build their brands, increase sales, improve customer service, distribute their content, and most probably a hundred other uses. On a personal level, social media platforms are used as an easy, affordable and quick way to connect with family and friends. People can now easily show others what’s going on in their lives, what they achieved, sharing news, pictures and videos.

I have read many debates on the need for social media in business versus the negative impacts of it on business. From most of the articles I have read, the common thread for this negativity of social media in business is the fact that the users do not know when to draw the line between social media for business and social media for personal use.

The question that I ask is whether we need social media laws?

From around January 2010 to November 2011, roughly 674 cases in the USA alone involved social media. These cases were in majority criminal matters, but also includes:

  • matters with regard to trade secret theft,
  • trade libel matters,
  • copyright matters,
  • employment related matters,
  • trademark infringements,
  • social media data(posts/uploads) as evidence

I stopped to continue looking at other countries, but this in itself was the reason for writing this article.

In South Africa, the 2011 cases of Fredericks v Jo Barkett Fashions and Sedick & another v Krisray (Pty)Ltd is probably the most notable under legal practitioners. In the latter case, certain employees were dismissed, because they posted comments to a social media network which were derogatory towards the company owner and certain members of his family.

It is clear from the aforementioned cases that even in South Africa we are faced with social media issues in respect of the law.

Social media is not going away! It is used on a daily basis and even more so in media circles. Court attendees now report directly from the court rooms via social media give “to-the-minute” updates of what is happening. Just think back to the Oscar Pistorius case. Can you recall all those journalists just hammering away on their laptops, tablets and phones.

The list can go on and on, but the reality is that we are bound to see more social media related cases in our courts. Is our courts ready to handle this and give meaningful insight with the decisions they will take?

In my honest opinion, even with my view of a disconnect between technology and law, I think our courts will and should be able to address this. I think there are more than enough case-law that will enable our courts to apply their minds.

My concern is therefore not with the courts, but with business and how business will be enabled to govern social media within their environments.

Well, to institute laws on social media might be extreme at this point. It would be a waste of citizen money to enact a “Social Media Act, 2015“. Social media already impacts on the Constitution and various other existing laws, like the Interception of Communications and Provision of Communication-related Information Act 70 of 2002 and even Labour Law.

The impact of social media was seen throughout the world in notable events:

  • Barack Obama’s winning election campaign
  • Organising of the Sydney riots
  • The uprisings in the Middle East
  • In the clean-up after the New Zealand earthquake
  • The 2011 UK riots
  • Victoria’s Secret Flash mobs
  • Strikes

Business needs to realise the impact that social media networks can have, both positive and the negative. So in the absence of governing laws, what should companies do?

Here are some of my thoughts:

  1. Management needs to really KNOW what social media is about and how it is and can be used. The 70-year-old Board Member needs to know that a tweet is not a sound made by a new species of bird. They need to know that FaceBook is not a monthly magazine that has a picture of people’s faces.
  2. Employees needs to be made aware of the impact that social media can have on them from a professional perspective. They need to know if they think their boss is a ‘jerk’ and they post it publicly on their FaceBook, they might condemn themselves professionally. You can lose your job and guess what, the next employer will check your social media accounts, before they invite you for the interview. Employees should be made aware of the pro’s and cons!
  3. Unions, just like Management, needs to really KNOW! They need to be fully informed and able to assist their members on the acceptable use of social media platforms. Above that, a union representative shouldn’t put himself/herself in a position where he/she defends in a disciplinary hearing thinking that Vine is something the employee drank during working hours.
  4. With everyone being made aware of social networks, only now should Management and the Unions sit down and draft policies. YES! In the absence of legislature, which I see currently as unnecessary, the next best thing is clearly defined and enforced policies. These policies should not be used to prohibit employees from using social media, given the positive impacts, but rather it should be implemented to guide employees to use social media responsibly, acceptably and not to their detriment.
  5. Everyone is happy, policies are in place and agreed to between Management and employees. Now you need to create a “culture“. Continuously make employees aware of these policies. Continuously ask for inputs, because the 70-year-old Board Member needs to be kept in the loop with the changing trends in social media.
  6. Point 5 should obviously indicate to you that you will have to review your policies at least once a year. Social media is a technological platform and as we know technology constantly evolves.
  7. A last point of note is to be cognisant of any governing laws and that your policies do not oppose these laws. If you find yourself in a court, example labour court, and your policies are contradicting law, you will not have any leg to stand on – Plainly, you will lose your case.

Hoping that I’m not missing anything, but my goal is not to give a comprehensive to-do-list, but rather a stepping stone to start a process and get your business and employees on the same side and award both the required protection.

If I missed something or you have an opinion contradicting or supporting mine, feel free to post back. Also, I am discussing social media, so don’t be shy, share this with your friends by using the sharing buttons below.

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