In the wake of the recent Penny Sparrow and Chris Hart debacles, there has never been a better time for employers to familiarise both themselves and their employees on 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 employer due to severe reputational damage and termination of employment for the employee.

This month, Penny Sparrow, a KZN resident, posted the following on an online, public, neighbourhood watch group:

“These monkeys that are allowed to be released on New Year’s eve and New Year’s day on to public beaches towns etc obviously have no education what so ever so to allow them loose is inviting huge dirt and troubles and discomfort to others. I’m sorry to say that I was amongst the revellers and all I saw were black on black skins what a shame. I do know some wonderful and thoughtful black people. This lot of monkeys just don’t want to even try. But think they can voice opinions and get their way dear oh dear. From now on I shall address the blacks of South Africa as monkeys as I see the cute little wild monkeys do the same, pick and drop litter."

Soon after posting this, Sparrow’s message went "viral" and has subsequently seen a wave of angry responses calling for, amongst other things, Sparrow to be legally penalised, Sparrow to be fired and Sparrow to vacate the country and take her racist ideologies with her.

Black Like Me founder and DA member, Herman Mashaba, has now laid a charge of crimen injuria against Sparrow.  Crimen injuria is a crime under South African common law defined as: “The act of unlawfully, intentionally and seriously impairing the dignity of another.” The Democratic Alliance is also planning to pull Sparrow’s membership (she is an ordinary member and would be given the opportunity to appeal the suspension) and has referred her conduct to the Federal Legal Commission for investigation.  Public complaints have also been filed again Sparrow with the South African Human Rights Commission.  Many people also contacted Jawitz Properties where it was assumed she was employed and posted messages online stating that they would never buy a property through a company that hired racists.

Sparrow could also be tried in Equality Court for hate speech.  One of the Promotion of Equality and Prevention of Unfair Discrimination Act’s (“the Equality Act”) objectives is to prohibit hate speech.  Section 10(1) of the Equality Act states that:

“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could be reasonably construed to demonstrate a clear intention to:

• Be hurtful;
• Be harmful or to incite harm;
• Promote or propagate hatred.”

In the case of Herselman v Geleba, 2011, the Court found that the use of the word ‘baboon’ amounted to hate speech as defined in section 10 of the Equality Act.  The court held that the term had racial undertones and a derogatory meaning.

Sparrow did post an apology on Facebook, however, in terms of potential prosecution, it is not enough to fulfil the Equality Court’s definition of an apology (“a mere retraction cannot be a full and free apology”).

Sparrow, as it turns out, was not in fact in the employ of Jawitz Properties at the time of her now famous comment.  She had been previously been consulting to them but had subsequently resigned.  Her real estate agent licence also expired at the end of December 2015.  Jawitz stated that they were still considering legal action against her for bringing the company into disrepute.  This would be hard to achieve, however, now that she no longer works at the company.  If she had been, the company could have potentially succeeded in terminating her contract based on the fact that she brought the company’s name into disrepute which breaches the employee's statutory and common law duty of good faith toward the employer.

Sparrow is not the only person who has been under the South African media spotlight for their recent online posting.  Chris Hart was suspended this month from his position as a Standard Bank economist and strategist for Tweeting:

“More than 25 years after Apartheid ended, the victims are increasing along with a sense of entitlement and hatred towards minorities…”

Several people have now laid charges against Hart and his professional qualifications are also being questioned.  Standard Bank, having now suspended Hart, has distanced themselves from his tweets, stating that they cannot comment due to the fact that there is a disciplinary hearing underway.

Cases like these have been happening worldwide; who can forget the Justine Sacco Tweet of December 2013, where a Communications Director for IAC in the United States (a PR company) was fired after Tweeting “Going to Africa. I hope I don’t get AIDS. Just Kidding. I’m White!” just before she boarded a flight to Cape Town on holiday.

So, in light of all of this, what should employers be doing to guard against this behaviour and its consequences? Employers need to inter alia:

• Educate and train employees 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 lawyer to ensure all of the above are in line with the law and current legislation, and follow international best practice.