Free speech can be expensive

July 2017 Editor's Choice, Associations

The Electronic Security Distributors’ Association (ESDA) kicked off Securex 2017 by hosting a breakfast on the first day of the event for its members and their guests. The guest speaker at the breakfast was Emma Sadleir, a media law consultant and speaker.

Emma Sadleir.
Emma Sadleir.

Sadleir spoke on the legal and reputational risks of social media for individuals and companies. She is an attorney with a BA LLB from the University of Witwatersrand and an LLM in Information Technology, Media and Communications Law from the London School of Economics.

You are a publisher and a celebrity

Sadleir started off by telling the audience about three terrible and dangerous inventions that have changed the world, and which we seem unable to live without. These dangers have seen many people suffer public humiliation, lose their jobs and end up in court, but we seem to be unwilling to use them responsibly.

The first is a smartphone with an Internet connection. What you put onto the Internet stays on the Internet, no matter how many times you try to delete it or try to have it deleted. And it’s worth noting, as Sadleir explains, according to South African law, as soon as one person has seen the content, all laws apply (such as defamation), as if it was published on a billboard.

In other words, those comments and images you shared on that private WhatsApp group you’re on are still deemed to be published as soon as one person has seen it.

Of course we all think that a private chat or group or message is aimed at certain people so we don’t have to worry about it being seen beyond the confines of our intention. Wrong assumption.

Firstly, no matter how private you think it is, whatever ‘it’ may be, it is stored and available to the company providing you the service, and can generally be given or sold to others. Remember, these companies don’t offer a free service because they are nice guys, they sell a product to make money and that product is you and all your juicy personal data.

Secondly, and this brings in the second danger, is the ability to take a screenshot of anything and send it on. You have no control over what other people do.

The third danger is the camera on your smartphone. Everyone has one and everyone uses it, most often without thinking about it. You are a celebrity and you are also the paparazzi taking personal and private pictures without consent.

How many children have sent ‘private’ selfies, only to see them plastered all over Facebook or some other social media site? A mother in South Africa recently experienced that when she sent a selfie that was meant for her husband to her kid’s sport team.

No boundaries

As many people have unfortunately discovered, just as your privacy and the concept of confidentiality has changed (or one could almost say vanished), there is also no longer a clear boundary between you as an individual and you as an employee/member/associate/partner/etc. Personal Facebook posts or Twitter tweets, or posts on any social media impact all the versions of you.

Companies see social media posts by their employees as having an impact on the company and therefore act against people who post inappropriately. South Africa has seen its fair share of these events where people have lost their jobs and companies have felt the financial and reputational fallout of supposedly personal posts.

While the Constitution of the country guarantees freedom of expression, Sadleir says it is not an absolute right as it must be balanced between others’ rights to privacy and dignity. This opens another can of legal worms as what one person considers private may be something another person considers to be in the public interest and worth broadcasting.

Don’t be stupid

The discussion on social media and privacy can go on forever. However, the basic rules one should adhere to when using social media are:

- Look after your own privacy. The more you protect your privacy, the more you will have.

- Consent overrides privacy. If you give your consent, anyone can broadcast your opinions or images, no matter what. This is why it’s worth reading the terms and conditions of your social media sites. As noted above, you are the product, whether you are five years old or 95 years old. Most sites give themselves the right to use anything you post, share it with anyone, and they are not obliged to tell you about it or pay you for it.

- The Internet is your ‘online CV’. In many cases it is more important that the resumé you send to potential employers. And remember that what’s on the Internet stays on the Internet – forever.

- Even simply liking or ‘favouriting’ something online can make you liable for defamation or another offence. When it comes to online content in any form, you are guilty by association and not disassociation. Ignoring a hateful post means you agree with it because you did not disassociate yourself and/or your company from it.

- For the jokesters on the Internet, it’s worth noting that no matter how funny or innocent you intend your joke (or any post) to be, when it’s out there it loses context, loses its tone, and you have no control over your audience – your intended audience or not.

- It’s always worth remembering: if one person sees something you post, it is published in the public domain.

As for children and teenagers, it is crucial for parents to educate their kids about the dangers online. There has been more than one attempted suicide by a child in South Africa after a nude selfie sent to a trusted friend ended up being shared with the world. And as an aside, naked pictures of children under 18 constitutes child pornography and can lead to criminal charges for possession, distribution and/or solicitation (asking or pressuring someone to provide such an image). Sadleir notes that naked images of people over 18 are not illegal, but it is stupid.

Sadleir advises everyone to assume that everything they post on the Internet is being published on a billboard for everyone in the world to see. Use your common sense: do not let anything exist in digital format that you would not be happy to see on that billboard. And above all, just don’t be stupid.

For more information contact Emma Sadleir, [email protected], @EmmaSadleir.

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