Social media and employment: the new business risk

The various incidents in the past few months of racism on social media have highlighted the dangers of social media use and abuse.

It has also brought to the fore the potential for negative spill over effects into the employment context and the effect this has on business reputations and employment relationships.

The Botswana Constitution protects freedom of expression, however, it also limits it as the freedom is not absolute. A limitation of the right to freedom of expression will still be lawful as long as it is reasonably required for the purpose of protecting the reputation, rights and freedom of other persons. Thus, the following forms of speech are not protected by the Constitution: hate speech, defamation and furthering a designated boycott.

The Botswana Penal Code takes it a step further and also contains criminal defamation, in that it is unlawful to publish any defamatory matter that is likely to injure the reputation of any person by exposing him or her to hatred, contempt or ridicule, or likely to damage any person in his or her profession or trade by any injury to his or her reputation concerning another person, with the intent to defame (for example Facebook posts about colleagues, bosses, employers and companies).

The danger with defamatory content is that there is the possibility of liability or damage to the company either via statements made on social media which can quickly spread worldwide, vicarious liability of the employer, as well as brand and reputational damage.

To anticipate and address the effects of social media on their businesses, employers should draft social media policies that include provisions to the effect that statements made on social media may constitute misconduct, which may warrant disciplinary action, including dismissal. Social media and labour law training and sensitisation could also be held for all levels of employees.

Larona Somolekae is an associate(secondee) at Bowman Gilfillan Africa Group's Bookbinder Business Law office in Gaborone, Botswana.

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