Social media, online communications and defamation in the workplace: A puzzle for liabilities?
| Citation | (2019) IPLJ 116 |
| Author | Nwabueze, C.J. |
| Date | 12 February 2020 |
| Published date | 12 February 2020 |
| Pages | 116-142 |
SOCIAL MEDIA, ONLINE
COMMUNICATIONS AND
DEFAMATION IN THE
WORKPLACE: A PUZZLE FOR
LIABILITIES?
ABST RACT
The online i nteraction of indiv iduals and exchange of user –generated co ntent or
informatio n has transformed the way pe ople work and communicate in the 21st cent ury.
digital age has not iced dramatic changes i n the way content and infor mation are created,
consumed and s hared. This is pa rticularly not iceable in the workplace, w here social media
enables brand ma rketing and aids i n recruiting a nd professional networki ng. However,
online stat ements can also tarni sh the company’s reputation. Despite all t he advantages,
employees’ online com munications, es pecially bad-mouth ing, may raise eth ical issues.
This paper exa mines the liability of the employee, a s author of a defamatory st atement
related to the employer, whe n his/her communic ation is accessed onlin e. The employee’s
right to priva cy/freedom of expression aga inst the employer’s right to reput ation is
discussed , as well as the mechanis m of acquisition of the conten ts of a communication
within a workpla ce as part of a defamat ion-based claim. T he paper establishes t he
liabilities wit hin the tripart ite relationship of media distr ibutor–database prov ider–user,
as well as data law, tak ing an example the Eur opean Union system. T he conclusion
includes recom mendations on creati ng a framework of guideli nes and principles to foste r
productive employer –employee dialogue i n the digital context w ithin the workplac e in
African ju risdictions, includ ing South Africa, Nige ria and Cameroon.
KEYWORDS: social me dia; defamation; em ployee liability; privac y; freedom of
expression; South A frica, Nigeria; Cam eroon
1 IN TRODUC TION
Social media has become a cr ucial means of communication the world over.
As the public increasingly t urns to the inter net to obtain information quickly
Caroline Joelle Nwa bueze (PhD, LLM, MA, LLB), a post doctor ate research fellow under the
South Afric an Research Chair in Law, Societ y and Technology, College of Law, Univer sity of
South Afric a, is currently a s enior lecture r at the Faculty of Law of Enugu St ate University
of Science and Technology. This p aper draws on the con tents of the author’s paper pre sented
during the 2 018 annual conference of the So uth African As sociation of Intellec tual Proper ty
Law and Infor mation Technology of Law Teachers and Resear chers (AIPLITL), held from 4 to
5 July 2018 and hosted by the Univer sity of Pretoria. The aut hor acknowledges the spon sorship
by the National Rese arch Foundation of Sout h Africa (NR F), the Department of Scienc e and
Technology (DST), and the S outh African Re search Chair in L aw, Society and Technology
(SARChI), Universit y of South Africa.
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(2019) IPLJ 116
© Juta and Company (Pty) Ltd
same applies to the right to red ress legitimate harm i ncurred through w rongful
online conduct. In fac t, online communicat ions and statements made on
social media can spread , interfere with the victi m’s dignity and pr ivacy, and
be defamatory. In the workplace, the employer could be a victi m, while the
corporation — as a jur istic person — could be subject to defamation. T his
was underlined in t he South African case Natal Newspapers (Pt y) Ltd,1 where
the court found that a ju ristic person does have a person ality, and therefore
has the right to good name or re putation. Defamation damages a corporat ion’s
reputation, thus, it should be able to sue and re cover damages to vindicate its
reputation once evidence is provided. 2
Defamation is a civil wrong of iniuria, which refers t o a ‘wrong’, an ‘unlawful
ac t’, 3 a ‘not-right’ or an ‘injustice’.4 For the purposes of this discussion, one
such delict is the unlawfu l publication, animo iniuriandi, of a derogatory
online statement by an e mployee, concerning the employer, or connected to
the employment relationship. A statement in t his context is defamatory if it
has the effect of injuring t he employer’s reputation. As emphasise d by the
court in the ca se of Conroy v Stewart Printing Co Ltd,5 a plaintiff ’s reputation
is injured if the state ment tends to lower the plaintiff in the est imation of
right-think ing members of society. An employee who authored a statement
tainted with mala de or bad intention, is therefore individually respo nsible,
as publisher, for the wrongful content.6
the incrimi nating statement should be:
7
A claim for online defamation with in the workspace requires the employer to
gather evidence of such statements.
Surveillance at the workplac e is a key process in obtaining relevant evidenc e
of derogatory statements m ade by employees. Black’s Law Dictionary
surveillance as ‘obser vation and [the] collection of data to provide evidence for
1 Dhlomo NO v Natal New spapers (Pty) Ltd and Anot her [1989] 2 All SA 136 (A).
2 Ibid.
3 E Descheemaeke r and H Scott (All Souls C ollege, Oxford) ‘Injur ia and the common law’,
available at htt p://ectil.org (accessed on 21 September 2018).
4 E Des cheemaeker ‘A man of bad charac ter has not so much to lose: Trut h as a defence in the
South Afric an law of defamation’ (2011) 128 SALJ 454.
6 Z Leko ma ‘Online defamat ion: The ugly face of social media’ (2013) 13(9) Without Prejudice
56 –57.
7 Le Roux and Oth ers v Dey (Freedom of Expre ssion Institute and Rest orative Justice Cent re as
Amici Curiae) 2011 (3) SA 274 (CC).
SOCIAL MEDIA, ONLINE COMMUNICATIONS AND DEFAMATION IN THE
WORKPLACE: A PUZZLE FOR LIABILITIES? 117
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