TMT ENSight | 25 April 2018

Social media: speaking out vs speaking up

by Kgothatso Mampa

Criticism can be a very tricky thing to digest. The reality is that nobody likes to be told they are wrong. This is especially true for large corporate entities, the so-called “big business”. Big business employs thousands of people across the globe and has for years gone about its business as usual. However, the emergence of social media has meant that numerous corporate entities have found themselves in situations where they have needed lightning reflexes as digital vigilante mobs hold them publically accountable for various misdemeanors.

Social media has injected much-needed gravitas into the constitutionally enshrined right to freedom of expression. Since the meteoric rise of social media platforms, the (seemingly automatic) response of disgruntled customers is to register their dissatisfaction with various products and services by showing up big business online. The limits of freedom of expression are consequently being tested like never before. While this is beneficial for public discourse and the improvement of products and services, the people employed by corporations are found conflicted. These people play the dual function of employee and customer in the relationship. 

Whether employees of a corporate entity are entitled to publically criticise their employer is a tricky question to answer. The Constitution, which is the supreme law of South Africa, is very clear about what is not protected by the right to freedom of expression. As such, as long as utterances do not incite violence, constitute hate speech or propaganda for war, it seems like employees are licensed to openly criticise their employer. However, it is not that simple. Employment relationships at this level are governed by employment contracts. Savvy employers further regulate the relationship with social media polices, pronounced grievance procedures and company IT use or network policies. One of the tenets of employment relationships is that employees owe employers the duty to uphold the values of their employer and the duty to not bring the employer into disrepute. Thus, while the Constitution permits employees to liberally criticise their employer in the name of freedom of expression, the employees run the risk of breaching their contractual obligations to their employer.

Whether citizens like it or not, social media has effectively made every single person who works for a recognisable organisation a brand ambassador of that organisation. This can be a scary prospect and can also be a burden for employees if the employer keeps making public blunders. 

While it is easy for an embarrassed employer to refer to contractual obligations to discipline an employee who publically criticises the employer online, employers should not be opposed to receiving criticism. Clamping down on criticism can have catastrophic consequences because in the absence of criticism, there is no opportunity to self-correct. In an environment where people are encouraged to speak up and have their legitimate concerns addressed, it is conceivable that the same people will speak out. Employers and employees have to accept that in the age of social media, if either of them get it wrong, both parties will be surrounded by a miasma of scandal that touches them both by association.     

For assistance with social media risk management, social media policies, or social media training, please contact ENSafrica’s technology, media and telecommunications department. 

Authored by Kgothatso Mampa, a candidate attorney in ENSafrica's technology, media and telecommunications department. 

Reviewed by Wilmari Strachan, a director in ENSafrica's technology, media and telecommunications department. 

No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.



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