FACEBOOK | Schnetler's

Facebook can be described as a social network that provides people with the opportunity to connect and communicate with friends, family, acquaintances, colleagues and even strangers, around the world. The success and popularity of this social network is not in question when looking at their more than 9 billion users, of which 900 million check or update their account at least once a month.

Despite the general criticism against South African courts for being sceptical and sometimes slow to accommodate developments of this kind, widespread controversy occurred when a Durban High Court judge, Judge Ester Steyn, welcomed the service of a court process on the defendant’s Facebook social network page.

This urgent ex parte judgement followed after the defendant’s attorney of record withdrew in the matter of CMC Woodworking Machinery (Pty) Ltd vs Pieter Odendaal Kitchens and failed to provide the plaintiff’s attorneys with an alternative address where notice to the counterparties could be served. At this stage of the process, pleadings had already been exchanged on both sides and the parties awaited the allocation of a trial date. Needless to say, the plaintiff’s attorneys were in the position where they had no alternative address to serve the court documents on the defendant. All subsequent attempts to contact the defendant in accordance with the rules of court, proved unsuccessful. Consequently, the plaintiff (applicant) brought an urgent application for substituted service on the defendant’s personal Facebook page.

In view of the application, Judge Steyn placed a great deal of emphasis on the recent amendment to the Uniform Court Rules, and more specifically Rule 4A, in which provisions of the Electronic Communication Act 25 of 2005 were incorporated. This rule allows litigants to serve courtdocuments by e-mail or fax and was specifically created to ensure that the court processes are brought to the attention of the relevant party.

Furthermore, these rules make provision for the appropriate procedure to be followed in the event of unsuccessful service in the ordinary course of business. This process is called substituted service. The party who seeks to serve the court document must apply to the court for substituted service and only after the court is satisfied that the particular method of service will be adequate and that the traditional methods of service were not effective, will a court grant leave for this type of service.

The judges in the courts will take the following into consideration:

Nature and extent of the claim
Grounds upon which the claim is based
Grounds upon which the court has jurisdiction
Method of service
Last known location
That the applicant has tried the usual methods and has tried to locate the respondent without success

Although Facebook is primarily used as a social network, according to Judge Steyn it is fair to draw the conclusion that this particular network is used for other useful functions such as tracking individuals as well as to obtain essential information. Judge Steyn emphasised that each application must be decided on its own merits and on the type of document that needs to be served on the party concerned.

Leave was accordingly granted to the applicant for substituted service using a personal Facebook message. In addition, to promote legal certainty, the judge ordered that the notice be published in a local newspaper should the defendant, for some reason, not have access to any electronic communication devices.

Service using a social media website like Facebook has a number of advantages. Many Facebook users probably spend more time on Facebook than reading a newspaper. A notification via Facebook is therefore more targeted and would be more likely to reach a person’s attention than an ad in the legal classifieds. This order is widely described as a ground-breaking judgement in South-Africa, and Facebook users can click “like” with satisfaction.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Facebook, Twitter and other social network sites are part of many people’s lives and serve as a useful vehicle for sharing one’s personal views. However, these sites may have unfortunate ramifications.

Let’s be honest, ranting in public about your boss has never been seen as a smart career move. It is one thing to speak your heart out about your boss to a friend over a drink, but for some reason or another, employees tend to lose their inhibitions when there is a computer screen between them and the world out there.

What happens when an employee makes use of a social network to air his/her views or to say nasty things about his/her employer?

Courts have held that it is fair for an employer to dismiss an employee for posting intentionally offensive statements about his/her employer on a social networking website like Facebook.

In Sedick & another vs Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA), employees were dismissed for bringing the company’s name into disrepute by publishing derogatory comments about the owner of the company on Facebook. The employees claimed that the employer breached their right to privacy by accessing their profiles on Facebook.

What happened?

The employees, De Reuck and Sedick, worked for a fashion accessories company. The company’s Marketing Manager logged onto her Facebook account and navigated to De Reuck’s Facebook page because she wanted to send her a friend request. She was able to see everything on the employee’s Facebook wall without being given access as a friend. She came across numerous posts by Sedick and other employees where they exchanged several snide remarks, which included the following: “Trust me, no one can put up with so much shit when the f*cking kids join the company!”; “From so-called ‘professionalism’ 2 dumb brats running a mickey mouse business”; “… today was hectic with Frankenstein”; “What an idiot”; “A very ugly man with a dark soul”.

The right to privacy?

The Commissioner noted that, in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, section 4(1), “Any person … may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.”

According to the Commissioner, the internet is a public domain and Facebook users have the option to restrict access to their profiles as well as the information that they publish. Because of the employees’ failure to make use of the privacy option, they had abandoned their right to privacy and the protection of the abovementioned act.

Fair dismissal?

The employees argued that they had not damaged the company’s reputation because they did not directly refer to the company or anyone who managed it. The Marketing Manager and the Arbitrator agreed that the references to the company and its management were obvious, because the people who were reading the comments would probably have known what and whom they were about.

The Commissioner held that, considering what was written, where the comments were posted, to whom they were directed and by whom they were made, the comments brought the employer’s good name into disrepute with persons both inside and outside the organisation.

The Commissioner confirmed that a dismissal under such circumstances could be fair if the employer follows the correct procedures and if the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act.

The moral of the story is: if you had a really rotten day at the office and are about to post some nasty comments about Mr or Mrs Boss, hold on a second. Do not write under the influence of alcohol, anger or frustration, as this sharing might get you fired.