Social Media and Employee Speech : The Risk of Overstepping the Boundaries into the Firing Line

Abstract

The influence of social media has filtered through to every facet of our daily lives, including the workplace and employment relationships. There are an increasing number of cases where the messages of employees posted on social network sites have led to disciplinary proceedings or even dismissal. The traditional 'water cooler discussions' have now moved online where they have a greater impact - for all practical purposes there is now a permanent written record of communication and a potentially wider audience can be reached. The right to freedom of speech is not an absolute right - it has to be weighed against other rights, including the right to a good name and the right to privacy. In terms of an employment contract an employee undertakes to promote the interests of the employer. This means the right to freedom of speech must also be balanced against the rights of the employer. The misuse of social media by employees who post defamatory, undesirable, or offensive comments may defame the employer or co-employees and negatively affect the working environment. This article is a comparative study to determine how the courts have demarcated the boundaries of freedom of speech on social networking sites used in the workplace in order to determine whether there are guidelines that can be applied to the South African context.