Social Media, the consequences of using Social Media and the law applicable to Social Media use have all come under the spotlight in recent months on the back of certain individual’s controversial social media posts and the subsequent termination of their work contracts.  A high profile example of this was the cancellation of Gareth Cliff's Idols judging contract by M-net after he tweeted a comment that was viewed unfavourably by the general public in the wake of the Penny Sparrow furore.

The most recent termination was that of East Coast Radio DJ and producer, Kevin Minter-Brown, who, according to his attorney, will be challenging his "dismissal" in the CCMA and suing the radio station for damages.  Minter-Brown’s 8 February post on social media referred to the deaths of two Durban cyclists who were knocked down by a drunk and speeding driver on the M4.  Referring to the fact that cycling is not permitted on that stretch of road, Minter-Brown posted that he was considering starting a running club on the N3 “because I think if there’s an opportunity to put us directly in harm’s way, then why not?”  According to media reports he deleted the post and apologised shortly after making the comment, but the station terminated his contract the following day after giving him the option to resign.

As I discussed in my earlier article about Penny Sparrow, there has never been a better time for companies and employers to familiarise both themselves and their employees with the in’s and out’s of Social Media Law and implement the correct and necessary steps to guard against public backlash and negative consequences.  These negative consequences can include loss of business for the company due to severe reputational damage, cancellation of service contracts for associates and termination of employment for the employee.

Case law shows us that employees have a responsibility to their employers not to bring the good name of the company into disrepute and to protect their duty of good faith to the employer by promoting the company’s best interests.  Many of the recent social media scandals that have resulted in the termination of a contract or the dismissal of an employee have been due to the reputational damage that the social media post caused the company.

Although we were eagerly awaiting the court's comments about the use of social media and its effect on the reputation of companies, it is important to note that in Part A of Gareth Cliff’s application (the part that was most recently argued in court), the main issue centred around whether or not Cliff had a contract in place with M-Net, and not whether or not his comment damaged the reputation of the company.

Cliff’s application against Electronic Media Network (Pty) Ltd and [Sic] Entertainment (Pty) Ltd (the broadcaster and producer of Idol, referred to generically an M-Net) is divided into Part A and Part B.  In Part A (which has been concluded), Cliff sought urgent interim relief by way of urgent reinstatement based on his alleged contractual relationship with M-Net.  In Part B (which is still to take place), Cliff seeks permanent re-instatement of his 2016 contractual relationship as well as future renewals, to have his purported termination declared unconstitutional, for M-Net to pay damages to him and for M-Net to retract their harmful remarks.

M-Net claimed they dropped Cliff as a consideration for a 2016 Idols judge position after he weighed in on Penny Sparrow’s racist social media post.  They alleged that the judging contract had not yet come into existence at the time and so they were entitled to disassociate themselves from Cliff.

In the controversial post that started the furore on social media, Sparrow likened black people to monkeys, lamenting their being "allowed loose" onto public beaches.  Responding to a Twitter poll on whether or not Sparrow’s comments were hate speech or were protected under the Constitution and whether hate speech should be criminalised, Cliff tweeted that "people don’t understand free speech at all".  Later, after being accused of being a racist, Cliff stated that: "This woman is an idiot and a racist, but I believe in freedom of speech."  M-net subsequently stated that Gareth Cliff’s on-going participation with Idols was being reviewed.  Cliff claimed that M-Net had breached their contractual obligations to him and had defamed him without justifiable legal cause.  In response, M-Net stated that in an industry where "perceptions are everything", they were fully entitled to protect their reputation and commercial interests.

For this reason, the central argument of Part A of Cliff’s application became whether of not the undertakings made in e-mails constituted a binding agreement.  Even though email correspondence can be informal in nature it can create binding obligations.  The Electronic Communications and Transactions Act 25 of 2002 gives legal recognition to transactions concluded electronically by e-mail.  Section 22(1) of the act states that:

"…An agreement is not without legal force and effect merely because it was concluded partly or in whole by means of data messages".

In Cliff v Electronic Media Network (Part A), Judge Nicholls stated that, "If one has regard to the e-mails exchanged between Cliff’s agents and M-Net, it is apparent that there had been previous discussions regarding the 2016 season and Cliff’s participation."  According to Judge Nicholls, "both parties conducted themselves as though Cliff’s position as an Idols judge was a foregone conclusion".  She thus came to the conclusion that Cliff and M-Net had entered into a tacit agreement.

Cliff’s application in Part A, being one seeking the granting of interim relief, the Court had to decide whether or not he met the requirements to be successfully granted this interim relief (pending the determination of the main issue in dispute).  These requirements are (taken from the judgment):

• “A prima facie right, albeit open to some doubt;
• A well-grounded apprehension of irreparable harm to the applicant if the interim relief sought is not granted and the applicant ultimately succeeds in establishing his right;
• The absence of a satisfactory alternative remedy; and
• The balance of convenience should favour the applicant.”

Addressing the establishment of a prima facie right, the Court found there was one.  Cliff had stated that generally, in his dealings with M-Net over the years, the signing of an agreement would take place well after the season had begun and, in the interim, the relationship would be based on an oral agreement.  He also presented email correspondence to the Court where M-Net informed Cliff of logistical arrangements and dates for auditions for the 2016 season of Idols.  Cliff’s images had also appeared on adverts for the upcoming 2016 season.  The Court highlighted the fact that M-Net had made a media statement on 22 January 2016 where they stated that they had “decided to review (their) decision to include Cliff as a judge in the upcoming Idols season”, intimating that the decision to have him as a judge on the show had already been made.  The Court stated that the facts of this matter were indicative of a contractual agreement between the parties having been reached.

In addressing whether there existed a well-grounded apprehension of irreparable harm to the applicant if the interim relief was not granted, the absence of a satisfactory alternative remedy, and if the balance of convenience favoured Cliff, the Court stated that Cliff, as a member of the entertainment industry, depends on his long-established brand.  Therefore, being dropped from Idols and labelled a racist does extreme reputational and financial harm to him.  The court concluded the judgment by stating that Cliff had satisfied all the requirements for interim relief and by ordering his temporary reinstatement until Part B of Cliff’s application has been concluded.

Even though this particular application did not centre on reputational damage, it still highlights how important it is for companies to inter alia:

• Educate and train employees and key associates and contractors about the use, consequences and risk of social media;
• Implement a social media audit when employees leave the company’s employ to ensure that the company is no longer tied to that employee in any way;
• Implement a Social Media Manual that is easily accessible by all employees and referred to in the employees’ employment contract;
• Include in the employees’ contract, reference to the company’s values and the need of the employee to uphold them – including those of equality and non-racism. The fact that the company will not support discrimination in any form and that such will be considered a dismissible offence should be included in the wording; and
• Consult a qualified Social Media Law practitioner to ensure all of the above are in line with the law and current legislation, and follow international best practice.

In cases where persons are not employees but are in fact contractors representing a company's brand either through sponsorship or association, companies would be well advised to include guidelines in their contracts with these associates, in order to protect themselves against reputational risk whilst still enjoying the leverage and exposure that the contractor's social media following may provide.