Think before you post

EMMA SADLEIR AND SARAH HOFFMAN

Feeling infuriated at the latest power outage? Tell Eskom via Twitter. And why not? We live in a country where freedom of expression is enshrined in our Constitution, and we have smart phones which allow us to publish content immediately.

And while, in the heat of the moment, it seems appropriate to join the online conversation – no matter how controversial or heated it may be – what even the smartest people fail to realise, is that what you do or say online (and even what you share, like or retweet) has serious legal, disciplinary and reputational consequences. 

The week before last, Jewish Report broke the story of anti-Semitic vitriol on social media surrounding a Holocaust play put on by King David Victory Park.

Last week we saw the harsh consequences of Hellen Zille’s infamous colonialism tweet come to the fore. This may well be the end of her political career.

This week, the social media networks were once again up in arms when a racist voice note from a single Pietermaritzburg Girls High School learner to one other learner, went viral, sparking an onslaught of online attacks on the school.

Every single day companies, who are victims of false defamatory allegations on social media, contact us at our social media law offices.

What these and so many other stories occurring daily show us, is that the way we communicate, has fundamentally changed. Before smart phones and social media, the most feasible way of sharing your views publicly was to write a letter to the editor of the newspaper.

The letter would be edited and checked by more than one person, and only if the editor was reasonably comfortable with the content, would it be published. That editor would also have undergone years of training as to what may and may not be published.

Now, with each of us armed with a powerful publishing tool in our hands, there are no checks and balances and no editorial control. If we want to post something, we do so immediately – onto a very public, very permanent platform. In the era of citizen journalism, each one of us is a journalist and social networks are the newspaper.

What most citizen journalists fail to understand, though, is that in the eyes of the law, the content we post on social media is treated the same way as the content published on the front page of a newspaper.

The legal consequences are no different, if not stricter. And while there is so much to say when it comes to advising on how to use social media without getting into trouble, here are two incredibly important legal concepts to understand: 

1.         No separate set of cyber laws

What we refer to as the “cyberspace fallacy” is the misconception that there is a separate set of “social media laws” or “cyber laws” that apply to the online world. This is absolutely untrue: the same laws that apply to your conduct in the real world apply to your conduct (and content) in cyberspace.

For example, as an employee, you owe a duty of good faith to your employer, which includes not bringing your company’s name into disrepute. If you post something online that damages the reputation of your employer (even if it is not related to the company at all), your employer has the right to discipline or even fire you.

A perfect example of this was when New York PR consultant, Justine Sacco was boarding a flight to South Africa, she tweeted to her 170 Twitter followers from her personal account: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” This “joke” cost Justine her job and turned her into a global hate figure after it was re-tweeted by a tech blogger to his 15 000 followers.

In addition, any other regulatory bodies which apply to your ordinary life, apply online too. This means that an employment contract, a school code of conduct or guidelines of professional bodies such as the Health Professions Council of South Africa for doctors are equally applicable to online conduct as they are in the real world. 

2.         The chain of publication

According to our law, where content has been published, every single person who has been directly or indirectly responsible for publishing it, can be held liable for it. So, if, for example, the SA Jewish Report published something defamatory about a person, that person can technically sue not only the newspaper, but the journalist who wrote the article, the editor, the printing company who printed it, the news agent who made the paper available for distribution and so on.

However, in the case of secondary publishers, the defence of innocent dissemination applies, meaning that they only become responsible once they are aware of the illegal content.

What this translates to in a digital context is that every single person who shares, likes and retweets content – even people who are tagged in defamatory content (and do not un-tag themselves) – can be held as liable as the person who posted the content themselves.

In the context of a Facebook page or group, the manager of the page or community group can be held as responsible for the content as the original author of the content.

In a landmark recent judgement in Switzerland, a man was successfully sued for defamation for liking a Facebook post accusing another man of anti-Semitism and racism. The judge compared liking a post to “spreading a value judgement” and said that a “like” is associated with a positive – meaning he clearly supported the posts.

Even if you share someone else’s content where this content is objectionable, you need to make sure that you are vocal about your distaste/disagreement with the content. If not, it might be construed that you are endorsing the content by sharing it, and you could be held as responsible as the original author of the content.

Finally, if there is one thing to remember, we should always do “The Billboard Test”. If you wouldn’t post content on a huge billboard on a major highway with your name, surname and the name of your company or school, do not let it exist in digital format! Indeed, the legal, reputational and disciplinary consequences of posting it on social media would be as severe as if it were posted on that billboard. 

Emma Sadleir is a social media law expert, speaker, and author of Don’t Film Yourself Having Sex and other Legal Advice for the Age of Social Media.

Sarah Hoffman is an Associate and Business Development Manager at Emma Sadleir Social Media Law.