Michalsons

Facebook and privacy

David Luyt — Thu, 16 Feb 2012 21:21:12 +0000

The CCMA has made two interesting decisions about whether it is unfair for an employer to dismiss an employee for posting intentionally offensive statements about their employer on a social networking website, like Facebook. The decisions are reported under Sedick & another / Krisray (Pty) Ltd [2011] JOL 27445 (CCMA) and Fredericks / Jo Barkett Fashions (2011) 20 CCMA 8.24.3.

The employees in each case were fairly dismissed, because the Arbitrators held that their privacy had not been infringed when their employers accessed their Facebook posts. The employees had published the statements in the public domain by not restricting their Facebook privacy settings. So, their employers were entitled to intercept the posts in terms of South African monitoring law.

These decisions raise the question,

How can organisations manage the use of social networking websites by their employees properly?

What happened

In the first decision, the employees (De Reuck and Sedick) were employed by a fashion accessories company (Krisray (Pty) Ltd) as an Operations Manager and Bookkeeper respectively.

The company’s Marketing Manager (Ms Coetzee) logged into 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. This included posts by Sedick and other employees. She was also able to see everything on Sedick’s Facebook wall without being a friend.

Ms Coetzee found offensive comments about the company and its management in posts on the employees’ Facebook walls. Another employee referred to Ms Coetzee and her brother in a post as,

“2 dumb brats runnin a mickey mouse business”

Sedick referred to the Director of the company as,

“a very ugly man with a dark soul”

In the second decision, the employee (Fredericks) also worked for a fashion company, but in this case, as an Administrative Assistant.

The company’s General Manager (Ms Barkett) accessed the employee’s Facebook page, because she had been told about offensive statements posted there. She found the statements in posts by the employee, including some name calling.

The employees in each decision were dismissed by their employers because of the statements they posted on Facebook, but they took the matters to the CCMA to challenge the fairness of their dismissals.

Unfair dismissal?

In the first decision, the employees argued that they had not damaged the company’s reputation, because they had not directly referred to the company or anyone who managed it. But, Ms Coetzee argued that the references to the company and its management were obvious. The Arbitrator agreed with her, because the people who were reading the comments would probably have known what and who they were about.

Sedick claimed that she had restricted access to her Facebook wall and argued that Ms Coetzee could have only seen the posts ‘illegally’. She was implying that Ms Coetzee had accessed the posts by logging in as someone else who would have been given access to Sedick’s Facebook wall – in other words, a friend. But, Ms Coetzee had printouts showing that she could see everything on Sedick’s Facebook page (including the offensive statements) and that the ‘add Friend tab’ was still visible. This showed that the employee had not restricted access to her page in any way. So, the Arbitrator dismissed Sedick’s claim.

De Reuck conceded that she had not restricted access to her Facebook page at all, but argued that her right to privacy had been infringed when Ms Coetzee looked at the posts.

In the second decision, the employee argued that her Constitutional right to privacy had been infringed when Ms Barkett looked at her posts. But, Ms Barkett argued that the posts could be seen by the general public and that they affected the company’s employees and key customers.

Ms Barkett submitted that Fredericks had breached the terms of her employment contract by publishing offensive statements about the company and its general manager on a social networking website, even though the company did not have a Social Media Policy.

Fredericks argued that dismissing her was too harsh a punishment and that all her circumstances had not been taken into account.

The CCMA’s understanding of Facebook

The Arbitrator in the first decision referred to the ‘Dummies Guide to Facebook’ and focused on how it related to privacy and the public domain.

Much of what the Arbitrator found is familiar to anyone who has used a social networking website. But, it shows that the CCMA has a thorough understanding of how these websites work.

They said:

Users make a personal profile and set their privacy options.
Users communicate by posting and responding to messages on their own and each others pages (known as walls in the case of Facebook).
‘Privacy’ and ‘friends’ are connected, because users can restrict access to their walls to only their friends.
Posts by users who have restricted the content of their pages to only their friends can only be accessed after that user has received a friend request from another user and accepted it, and then only by that new friend.
But, anyone can see anything on a user’s page if they have not selected any of the access restriction privacy options.
The rest of this article is only available to a registered user or a client of Michalsons. To continue reading this article, please login at the top right if you have already registered OR:
- Register - It's quick, easy and FREE to get greater access instantly. [ Register ]
- If you are a client of Michalsons, you get registered user access and complimentary access to client content. Register at [ Register ] and then send us an email requesting access as a client of Michalsons. We will give you access and notify you by email.

John will be speaking at the I…

From Twitter — Wed, 15 Feb 2012 07:04:26 +0000

John will be speaking at the ITWeb #ITGRC event on Tuesday next week. http://t.co/GLjGNSE9

Global Privacy and Security La…

From Twitter — Wed, 15 Feb 2012 07:03:24 +0000

Global Privacy and Security Law Treatise Supplement No.7 is in the mail!
Summary of content of Suppl 7 at http://t.co/GEl64v9K

Tax Break for Software Developers

Nicholas Hall — Fri, 10 Feb 2012 14:39:09 +0000

From 1 April 2012 Software Developers will be able to get a tax break of up to 150% on their income tax for “Research and Development”. This new tax break comes from an amendment to the Income Tax Act 58 0f 1962 that was promulgated (made law) on 10 January 2012.

So how does it work?

Basically you can deduct from your income (for tax purposes) a 100% any expenses that you have incurred solely for “research and development” provided that the expenditure was incurred in the production of income and in the carrying on of any trade.

What is important to note is the definition of “research and development”. The amendment defines research and development as:

(a) [the] systematic investigative or systematic experimental activities of which the result is uncertain for the purpose of—

(i) discovering non-obvious scientific or technological knowledge; or

(ii) creating—

(aa) an invention as defined in section 2 of the Patents Act, 1978 (Act No. 57 of 1978);

(bb) a design as defined in section 1 of the Designs Act, 1993 (Act No. 195 of 1993), that qualifies for registration under section 14 of that Act;

(cc) a computer program as defined in section 1 of the Copyright Act, 1978 (Act No. 98 of 1978); or

(dd) knowledge essential to the use of such invention, design or computer program; or

(b) developing or significantly improving any invention, design, computer program or knowledge contemplated in paragraph (a) if that development or improvement relates to any—

(i) new or improved function;

(ii) improvement of performance;

(iii) improvement of reliability; or

(iv) improvement of quality,

of that invention, design, computer program or knowledge.

In simple terms this means you can deduct any expenses you have incurred directly for the creating new software programs, or updating existing software provided you go on to sell that software or update. expenses would include things like:

Staff salaries
Licencing Fees, and
Hardware

The Act however specifically excludes expenses incurred for :

market research, market testing or sales promotion;
administration, financing, compliance or similar expenditure;
routine testing, analysis, collection of information or quality control in the normal course of business;
development of internal business processes unless those internal business processes are mainly intended for sale or for granting the use or right of use or the grant of permission to use thereof;
social science research, including the arts and humanities;
the registration, creation or enhancement of trademarks or goodwill.

And the 150% ?

I mentioned previously that it was possible to obtain a 150% deduction. In order to get the extra 50% deduction you need to:

Be a registered company or CC
have your “research and development” approved by the Minister of Science and Technology

However you will only be able to claim the extra 50% deduction on any expenses from the date of application to the minister. The Department of Science and Technology has some useful material available on how to apply for the deduction here: http://www.dst.gov.za/r-d

Can I claim this deduction for my current RnD ?

Unfortunately no. The Act is very explicit that you can only claim the refund for research and development expenses incurred after 1 April 2012. However if you have recurring licencing fees you will be able to deduct those in the future.

A Special Note for Game Developers

As I’ve mentioned before South Africa copyright law has treated “video games” as cinematographic films and not as computer programs, so ostensibly if the software you are developing is a “video game” then it looks as though you won’t be able to use the tax break as it only applies to “a computer program as defined in section 1 of the Copyright Act”. Do not despair though, even though the case serves as one interpretation of the law, at its core the case says that something can protected by under any of the categories for copyright, provided it simply meets the definition laid out by that category. It is an almost trite argument to say that video games of any nature, be they for console, PC or phone all meet the definition of a “computer program” as it is defined in the Copyright Act.

And no game devs, you will not be able to deduct the prices of games that you buy, even if it is for “research” purposes.

Going forward

Software developers need to jump on this opportunity to reduce their development costs. The Government hopes that this initiative will help develop the software development industry, and I’m almost sure it will.

Tax breaks for software develo…

From Twitter — Fri, 10 Feb 2012 12:11:02 +0000

Tax breaks for software developers: http://t.co/7sR8YjVF

This looks like a great initia…

From Twitter — Mon, 06 Feb 2012 06:05:59 +0000

This looks like a great initiative to get schools using ICT: http://t.co/jMvDwBle #thinkahead

PAIA manual exemption period h…

From Twitter — Tue, 31 Jan 2012 12:13:18 +0000

PAIA manual exemption period has been extended to 2016: http://t.co/mXITUWnP

Online Awareness for Students

Nicholas Hall — Tue, 31 Jan 2012 10:22:42 +0000

In today’s society people are spending more and more time online, be it for social activities (Facebook or Twitter), for study (Wikipedia or Google) or play (video gaming). While technology has progressed at a rapid pace, the law and societies social norms have lagged behind. Slowly though the law is starting to catch up, and with it there has a been an increase in people being sued for things they have done online. As a consequence people are starting to learn what is acceptable behavior and what isn’t. We offer a presentation on online awareness, aimed a high school students that will make them aware of the very real consequences of their online actions.

What do we cover?

Appropriate behavior online and the legal implications of bad online behavior
Online defamation
Privacy settings on social media platforms and why they are important
Cyber-crime
The basics of copyright and how it relates to pirating
What plagiarism is and how to reference properly

Outcomes

Students will have a good understanding of how they should behave online, and why it is important.
Students will have a basic understanding of copyright law, why it is important and the negative effects of piracy.
Students will understand how to reference properly and why it is important to reference.

Who should attend?

Students aged 13 and older - The talk is ideal for any students, in high school who actively use computers and technology at school or at home.
Teachers – While the talk is aimed at students, teachers will get some valuable insight into what the issues of interacting online are and how they can help mold their students behaviors.
Parents - Parents need to know how their children should behave online and bring these teachings into the home.

The talk is designed to be highly interactive with the audience, with QR codes embedded into the presentation to allow students to have access to source material during the presentation. Questions from the students are highly encouraged and the talk will naturally shift its focus to the topic that the Students engage with the most. Students will be given a summary of the talk to take away.

Who is the presenter?

Nicholas Hall, Michalsons Attorneys

Nicholas is currently helping many schools implement social media programs, from drawing up social media polices to giving educational talks to staff, students and parents.

How long is it?

The talk is usually 45 minutes, but can be expanded to up to 90 minutes.

What does it cost?

Please email us asking for a quote.

Venue?

We will come to your school.

Still have questions?

If you have any questions please email learning@michalsons.com or call 021 300 1070.

PAIA Access to Information Manual

Nicholas Hall — Tue, 31 Jan 2012 06:00:13 +0000

PAIA Manual

Section 51(1) of the Promotion of Access to Information Act (PAIA) says private bodies (this includes sole proprietors!) need to create a ‘manual’ that contains:

the postal and street address, phone and fax number and, if available, e-mail address of the head of the body;
a description of, and how to obtain access to, a guide on how to use the Act to get information from bodies;
What records are available to an interested party without having to request access in terms of PAIA;
a description of the records of the body which are available in accordance with any other legislation;
how to request records from the body in terms of the Act; and
such other information as may be prescribed by the Minister.

Regulations to the Act have stated that this manual needs to be available on the bodies website (if it has one).

This manual also needs to be submitted to the South African Human Rights Council.

as of 1 Jan 2016 ALL private bodies will need a PAIA manual

Certain private bodies are exempted (to see if you are exempted look at the section below). However the exemption is only temporary and as of 1 Jan 2016 ALL private bodies will need a PAIA manual, unless the exemption period is extended again (so far this exemption has been extended twice, once in 2006 and again in 2012).

Why do it?

It is a criminal offence not to submit a PAIA manual if you are required to do so, and you could face some hefty fines if you do not comply. Currently the SAHRC is not issuing fines for non-compliance, but whether this will remain the case is unknown.

Exempted?

How to use the Table

If you are in any of the industries listed in the “Industry” column AND you have 50 or more employees, then you need to compile a manual.
If you are in any of the industries listed in the “Industry” column AND your ANNUAL TURNOVER is equal to or more than amount in your respective industries “Threshold Turnover” column, then you need to compile a manual.
If none of the above apply, then you do not need to compile a manual
Remember the exemption only lasts until 31 December 2015.

Industry	Turnover Threshold
Agriculture	R 2 million
Mining and Quarrying	R 7 million
Manufacturing	R 10 million
Electricity, Gas and Water	R 10 million
Construction	R 5 million
Retail and Motor Trade and Repair Services	R 15 million
Wholesale Trade, Commercial Agents and Allied Services	R 25 million
Catering, Accommodation and other Trade	R 5 million
Transport Storage and Communications	R 10 million
Finance and Business Services	R 10 million
Community, Special and Personal Services	R 5 million

Drafting your PAIA Manual

If you need to compile a manual but need some assistance in doing so, why not contact us for assistance ?

Old Mutual signs multi-billion…

From Twitter — Fri, 27 Jan 2012 11:56:13 +0000

Old Mutual signs multi-billion rand IT deal with T-Systems http://t.co/oMf2XQ2A