If the past week’s two-day grilling of Facebook founder Mark Zuckerberg by the United States Congress has shown us anything, it’s that privacy is long dead. Not only have tech firms been monetising some of the most personal inner reaches of our lives, but they don’t seem to mind too much about sharing our data.

Consumers of social media have become so blasé about the value of their data that they offload about their indiscretions and prejudices online – as freely as they do pictures of their children and videos of cute puppies. 

Tiffs (or “twars”) are often what makes social media so wickedly delicious, but it’s best to think before you click “like” or comment, because anything you say can be shared many times over. And even if your privacy settings are in place, screenshots can be taken and your reckless comments online could well blow up your life. 

In recent weeks, a hateful 2011 Facebook post finally came to a head for a former policeman. Juda Dagane, a former warrant officer, tried in the Johannesburg Labour Court to challenge his unfair dismissal claim.

Dagane had posted racist remarks on the Facebook page of EFF leader Julius Malema when he was still head of the ANC Youth League.

He wrote: “(F***) this white racist (s***)! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA. When the Black Messiah (Nelson Mandela) dies, we’ll teach whites some lesson. We’ll commit genocide on them. I hate whites.” 

A reporter got wind of the story, wrote about it, and the officer’s employer found out. Afriforum reported him to the Human Rights Commission for hate speech and called for his dismissal.

Afriforum’s deputy chief executive, Ernst Roets, says Dagane’s utterances were “more than just a blatant form of hate speech”. “It is incitement to violence and even murder.”

Dagane was dismissed. At the bargaining council, the commissioner noted the police officer was required to protect citizens irrespective of race, and decided the dismissal was fair, so Dagane headed to the Labour Court. 

But the judge wasn’t swayed. Judge Anton Steenkamp called the racist Facebook posts “despicable” and slapped a costs order on Dagane.

Judge Steenkamp noted Dagane “was dismissed for very serious misconduct. He, a South African Police Service officer, had unfairly and openly discriminated against others (whites) on the basis of race through blatantly discriminatory racial remarks; by blatantly threatening the future safety of white people; and by making remarks on Facebook which amounted to hate speech.”

Labour and social media lawyer Lenja Dahms-Jansen, of Bowmans, warns that such cases are becoming increasingly prevalent.

“Where these cases have gone to the Commission for Conciliation Mediation and Arbitration or bargaining council, the majority of the dismissals have been upheld as substantively fair.”

Dahms-Jansen, who co-authored "Social media in the workplace" with her colleague Rosalind Davey, warns that the use of social media permeates all aspects of our lives, including the workplace. 

“The traditional scope of the workplace has been extended through the use of smartphones and social media. Where the conduct of an employee impacts on workplace relations, the courts and tribunals are looking at whether employers can be expected to continue with the employment relationship. This is the case even where the alleged conduct took place outside of the workplace or working hours.”

She says it’s become “relatively uncontentious” that, where the conduct on social media has the potential to bring the company’s name into disrepute, or where it may impact on workplace relations, or where employees are public officers (who are supposed to apply the law without fear, favour or prejudice), the employer would be entitled to institute disciplinary action, which may include dismissal. 

Plus, there are limitations on free speech. “Irrespective of whether or not it (the social media posting) is racist, it amounts to incitement of imminent violence and advocacy of hatred that constitutes incitement to cause harm.” 

Dahms-Jansen warns that, simply because users of social media are operating in a virtual environment, it doesn’t mean the law will treat them differently or they won’t face consequences for their actions.

“Freedom of expression needs to be balanced with the rights to dignity, equality and privacy. If you wouldn’t want your parents or employers to see it, don’t post, comment on, or ‘like’ it. 

“Even if your privacy settings are in place, if that misconduct comes to your employer’s attention by legitimate means, you can still be dismissed. There just isn’t anonymity online.”

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