South Africans are “ostriches” when it comes to using Facebook
Many of us are aware of the popular myth that ostriches believe burying their heads in the sand will make them invisible to predators.
In other words, an “if I can’t see you, you can’t see me” approach. Even though scientists will tell you that this is not true, the approach seems to bear a resemblance to the online behaviour of some South Africans.
This is according to Wilmari Strachan, director of technology, media and telecommunications at ENSAfrica.
Strachan warns that South Africans need to drastically change how they interact online – specifically the perception that they are out of harms way just because they are posting in private. Not only will this lead to trouble with friends and work – it could also lead to trouble with the law, said Strachan.
“According to section 78 of The Electronic Communications and Transactions Act (ECTA), there is no general obligation on any person or entity providing information system services (by way of connection, operation, access, transmission or processing of information systems or data, including the internet) to monitor data that it transmits or stores or to actively seek facts or circumstances indicating unlawful activity,” she said.
“However, this section needs to be read with section 75, which states that a service provider that provides a service that consists of the storage of data is not liable for damages arising from data stored, as long as it does not have actual knowledge that the data message or activity relating to the data message infringes on the rights of a third party and, upon receipt of a take-down notice, acts expeditiously to remove or disable access to the data.”
While these laws clearly apply to the social media platforms themselves, Strachan warned that the courts could apply the same rules to everyday users who are also providing information system services by creating their own “mini” public platforms on these.
This is further compounded by individual privacy settings, allowing other people to post or comment on their profiles, she said.
“In other words, there is no general obligation for individual users to monitor their social media platforms or to look for harmful posts, but there is an obligation to remove harmful posts when becoming aware of them or requested to remove them.”
“I didn’t see it”
Depending on a user’s settings, the user may receive email or push notifications of posts in which they were tagged or mentioned, said Strachan.
“However, not all users activate these alerts and may only become aware of the post once they log in. Even then, with hundreds of posts to sift through, it might be easy to miss, or not pay attention to, a post in which they were tagged or mentioned.
“Notwithstanding these challenges, if someone was active on the social media platform after the harmful post was published, it would be difficult to claim that she/he was unaware of it,” she said.
Another determining factor for liability may be someone’s actions after they became aware of the harmful post.
“It is important to use, manage and monitor social media accounts responsibly,” she said.
“This does not necessarily mean that these accounts need to be constantly watched, but it would be wise for social media users to pay attention to posts in which they are tagged or mentioned, and to be mindful of not only what they post, but also what they react to.
“Everyone contributing to a harmful post could be held liable, even if this is just by way of ‘liking’, ‘loving’ or ‘sharing’ it.”
Business
According to Strachan there is an even bigger responsibility on companies to manage their social media platforms, not only from a liability perspective, but also from a brand reputation perspective.
As a result, many companies employ social media monitoring tools to manage their social media platforms and those of employees.
While monitoring employees’ social media platforms has to be done within the bounds of the law (in South Africa, this includes employment law, the Constitution and the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002), such monitoring is important because the line between personal and business posts are sometimes blurred.
“Companies could be held vicariously liable for employees’ posts or even criminally liable where insider trading flows from seemingly innocent posts,” said Strachan.
Read: These Facebook, WhatsApp and social media messages could mean jail time
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