For the first time since the creation of Twitter seven years ago, Members of Parliament and lawyers who Tweet and Facebook are under threat of being charged for libel, reports The Times.  Codes of conduct in their Social Media communication are being developed, and should be considered for general businesses too.

In Parliament Tweeting by DA members, in particular party parliamentary leader Lindiwe Mazibuko, appears to have irritated other members of the house with their persistent Tweeting, and on occasion allegedly libelous Travelgate Tweets.  This has resulted in a call for a code of conduct to govern Parliamentarian Tweeting.  The Social Media policy of Parliament may remove the parliamentary privilege of making statements and allegations on Social Media platforms without threat of litigation.

The ANC caucus spokesperson Moloto Mothapo said that  Parliamentary rules and its code of conduct should be revised as a result of the wide spread use of Social Media by members of Parliament, Tweeting on their tablets and phones, in order to preserve the integrity of Parliament. MPs are also to be informed about the ‘legal perils’ associated with Social Media. Cedric Frohlick, responsible for committees in Parliament and for drafting the new Parliamentary Social Media policy, said: ‘If they (Parliamentarians) put information out there, they must take responsibility for it, because if you put information in the public domain about what is happening in parliament, and it is not a true reflection of what is going on, then you must expect that people are going to expose you for giving wrong information‘.  The article refers to Western Cape Premier Helen Zille as a ‘serial Tweeter‘, sharing ‘just about everything with their followers’, including being bitten by a rat when she collected her newspaper.  The parliamentary Social Media code will not affect the frequency and the content of her Tweeting.

The Johannesburg Bar Council has also warned advocates to not make ‘inappropriate statements’ on Social Media platforms, and that they ‘desist from publishing statements that could open them to accusations that they had breached rules governing professional conduct’. Members of the bar are prevented from writing about pending cases on any non-legal platform.

The Law Society of South Africa already has prepared a draft Social Media policy for its 25000 members in law firms, warning that comments about their clients’ cases may be a breach of confidence which could damage a client’s reputation.  Cape Town lawyer William Booth told the journalist that he does not issue statements about his clients’ cases on Twitter and Facebook.  He will only comment to the conventional media, yet does so with caution.

It would be advisable for companies to review their policy on the Social Media presence of their staff, whether in their personal capacity or on behalf of their company.  It appears to still be early days in this regard, most employers not setting guidelines as to the content of Tweets, and the Twitter Bios of their staff containing links to their company websites, yet claiming to Tweet in their personal capacity.  Any company linkage obviously would make the Tweeter and the employer equally liable for libel charges and defamation damage claims.  Siyavula MD Mark Horner’s reaction to the libelous Tweeting of his employee Marthèlize Tredoux was a surprise in his naive reaction, in that as long as she Tweets privately, he can not take action, even if some of her Tweets identify the name of the company as her employer. He also does not appear concerned that his employee is using his company time to write the defamatory Tweets, instead of doing her job.  The University of Stellenbosch head of Accounting had a very different attitude, instructing his lecturer Len Steenkamp to remove his defamatory Tweets.  Short-lived Social Media Manager of Robertsons, cookbook writer Sonia Cabano, lost her job when she used her client’s Twitter account to settle personal scores.  So too Emma Jackson, the V&A Waterfront Tweeter, has used her client’s Twitter account to settle scores. Cape Town Tourism managers, including Mariette Du Toit-Helmbold and Skye Grove, have a link to their employer website.  Grove has reTweeted libelous Tweets, and has written defamatory Tweets too, yet she and Mrs Helmbold have been quick to run to Cape Town Tourism’s lawyers with threatened claims for defamation, without any follow-up action. Grove appears to have been censored of late, and was reprimanded for using Cape Town Tourism lawyers for what was deemed to be a personal matter!

But it is not just the abusive action on Social Media that is a concern for employers.  How appropriate are the challenging Tweets by a chef’s wife about how long he is working, and that he is seldom at home, with the employer’s name mentioned in the Tweet?  Even more difficult is the situation when a well-known employee, who is synonymous with a wine brand, starts following a Pinterest porn page, showing on his Facebook page. Every shared hangover may build a profile of the person linked to a business brand, not what an employer may want to see.  Should one reTweet or share photographs or news about competitors’ brands and so ‘endorse’ them by implication if one is a well-known brand personality?  Are Mommy Tweets and Braai Tweets appropriate for the CEO of Cape Town Tourism, when one is following her for tourism news on Twitter?   Blocking followers on Twitter and on Facebook does not prevent one from reading the posts and Tweets, if one thought that the employer and others would not see them.  Employers have checked the Facebook page and Twitter feed of prospective employees, and have not employed them in some instances, due to what they have seen.  Imagine the abuse on Social Media platforms if an employee were to be disciplined, if they already are abusive towards others on these platforms?  Clients have done the same, and have often avoided using the services of suppliers if discretion is not respected in their Social Media communication.

Incredibly powerful as a communications channel, Social Media in general and Twitter specifically needs a ‘gentleman’s agreement‘ as to how to communicate.  One thing is certain: defaming any person is not only bad manners, but is also libelous, and opens the communicator (and potentially the employer) to legal action and claims for defamation.  Each one of us is a brand, whether linked to an employer or self-employed, and so a profile is built up through Twitter and Facebook about a person, and the brand linked to it, even though one may never have met that person.

Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter: @WhaleCottage