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Socialising in 2013

Social MediaSocial media has become such and fundamental part of our day to day lives, connecting us to our friends, family and the greater world. People share their entire lives on Facebook and tweet at the drop of a hat. In fact, if you want to hear any piece of news from anywhere around the world, you are most likely to hear about it first on Twitter.

Another benefit of social media was it’s use as a marketing tool. Social media provides the possibility of an enormous audience in the shape of followers, and its much cheaper than the traditional forms of marketing. So as more and more people tweet and post things online, more and more people are discovering the joys of sharing every minute thought that pops into their heads, no matter how stupid it might be.

The problem with tweeting without a second thought is that you forget that with all this access to social media platforms, comes a new responsibility. For one thing, were you aware that you can be held legally and personally accountable for things you post on Twitter and Facebook?

In 2012, Jessica Dos Santos tweeted: ”Just, well took on an arrogant and disrespectful k****r inside Spar. Should have punched him, should have.

Tshidi Thamana responded: “…I wish all whites had been killed when you sang ‘Kill the Boer’, then we wouldn’t have to experience @JessicaLeandra’s racism.”

The SA Human Rights Commission was fielding complaints against both of the users and eventually ruled that both individuals must issue a public apology and actively work towards the promotion of equality, tolerance and respect for diversity through various projects. The commission then warned citizens to be vigilant  about posting derogatory and hateful content on social networks.

I was sitting at work when I got an e-mail informing all employees that they need to be aware of the company’s policy on social networks. After reading it, I began thinking about all the risk people put themselves into every day without realising it. In South Africa, the laws surrounding freedom of speech have become a somewhat murkier subject over the last couple of years, so here’s what you need to know and keep in mind when you start sending that text.

The areas of risk include:

Hate speech: Where do you draw the line between freedom of expression and hate speech??Social Media2

[Hate Speech: Propaganda for war; Incitement of imminent violence; Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm]

Defamation: If you are communicating to one person or more, and it makes another person look bad, whether it is a caricature, cartoon, sketch or photograph, you can be accused of defamation.

[Defamation: The wrongful, intentional publication of a defamatory statement about a person.]

Facebook “friend posted: I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?

The person who posted this was sued by his “friend and the courts decided that this post was an infringement of the friend’s privacy and reputation and ordered that all such posts be removed as well as the payment of all the friends legal costs.

Privacy: Since all rights and freedoms must balance, how do you balance the right to freedom of expression and the right to privacy and dignity? Because privacy is a personal concept and the scope of the person’s personal space shrinks when they enter communal retains and social interaction, posts on social networks cannot attract privacy protection.

This means if you post something inflammatory and include a disclaimer, it will not be good enough in public domain.Social Media3

McIntosh Polela tweeted: “I trust that JubJub’s supporters gave him a jar of Vaseline to take to prison.” With the disclaimer: ”My tweets are for my tweeps”. He later had to post a public apology, stating: ”My tweet about JubJub on Tuesday nite was in poor taste. I profoundly regret posting & hereby retract. Je suis desole.”

Endorsement: When you tell the public that you approve of the product/service and you’re happy to be associated with it, you have endorsed it. You may incur legal liability if your use of a person’s name or image creates the false impression that the product has been endorsed or recommended by that person.

This would apply to those who would use social networks for marketing purposes.

Passing off: This means representing that your goods or services are those of another, or are associated with the goods or services of another. For example, have you also seen all those spoof Facebook pages?

Copyright and IP infringement: This gives the owner of the work exclusive rights to do certain things with that product for commercial or personal gain. If a 3rd party wants to use or publish that work, they need the owners permission.

[Copyright: The legal protection of certain kinds of works such as photographs, paintings, poems, books and music.]

NB: Just because material is in the public domain doesn’t mean you can use/modify/copy it!

Social Media4An example is Pinterest, which relies heavily on copyrighted material to generate traffic. Keep in mind that most social networks have a “Terms of Service” section that usually says something to the effect of “the user takes on liability for potential infringement claims which may be brought by an author for content that the user posts”.

If you’ve ever used Pinterest, you’ll know that the more content gets “repined”, the more it loses sight of where it originated. As a result of all the trouble, Pinterest developed a “NOPIN” option available to authors or owners.

Contract: Most social networking platforms allow you to buy and sell things via a post or tweet etc. The traditional laws that apply to contracts also apply to online contracts, so you still need contractual capacity, consensus (offer & acceptance), validity and formalities (the thing, the price, method of payment, transfer of goods etc.)

So if you advertise a car for sale on Facebook, and your friend posts a reply offering to buy it for a certain price, and you accept this offer, this is a binding contract!

Litigation: Did you know that social networks can now be used for litigation?? A South African court has allowed the legal service of court papers to be made via Facebook and in Australia, they can access you Facebook profile to use its contents as evidence.

Work place issues: Employees have certain rights and limitations in respect of social networking. Although employers may not discriminate against an employee on the grounds of sexual orientation, HIV status, political opinion, conscience or religion, recruiters often check all your social networks when doing research on you before an interview. Keep in mind what impression you want them to have of you.

Most companies have a policy on social networking which will allow them to dismiss or otherwise punish you if you post negative comments about your employers, post racial slurs of post material that brings the company into disrepute. Also, if you post material about your employers’ clients or suppliers that could jeopardise the employer or the business in any way.

Reputational risk

So all in all, THINK before you Tweet people, focus on being accurate rather than being first, check all your facts and the context before you post anything, keep your business and personal matters separate and if you do make a mistake, take responsibility and apologise before anything else.

P.S.: Don’t forget Auto-Correct and the blunders it will create!