Thursday, 16 May 2013

Access to social media passwords

Many parts of the USA have acted swiftly in the face of social media privacy law development and legislated against employers asking for employee social media passwords and access.   

Maryland blazed a trial in social media law by enacting Bill SB433 and becoming the first state of the USA to effectively legislate against employers asking for access to social media accounts.   A useful summary of the legislation can be found here [PDF].

There are further laws of this kind pending before many law-making councils in the USA and around the world.  The American Bar Association’s electronic journal reveals that at least 11 US States, Canada and Germany are considering laws of this ilk.

Having become a labour law practitioner in South Africa, I considered the following question, what is the force of a South African employer requesting a social media account password? 

Privacy is enshrined in the South African constitution and fervently protected by the Protection of Personal Information Act, the Consumer Protection Act amongst a few others.  So, the short answer is no, an employer may not request an employee’s social media account password.  Furthermore, an employee may not, as a condition for employment, seek unlimited access to social media accounts.

But, remember, any right may be limited under the South African Constitution if the circumstances are right. An employee of the State who may have access to sensitive State information would be justifiably limited in his expectation of privacy if asked for access to social media accounts.  There are other circumstances perhaps not as obvious as the one pointed out, but largely, an employer may not request access to social media accounts, or make access to social media accounts a condition of employment.  It violates the very core of privacy.

Unauthorized use of personal information is punished strictly in South Africa with fines of up to 10 million Rand (+-1 million US) and up to 10 years in prison.  Processing personal information without the right to do so will be viewed in a dim light, and this is the case on a global scale so from a South African perspective, it puts it inline with the majority of the world.  

Is there a need to create social media legislation similar to the laws discussed above in South Africa?  I do not believe so.  There is no real need to create it.  Privacy, although not absolute, is of paramount importance in South Africa’s carnation of democracy.

The consumer and employee have become, to an extent, sacred cows in modern South African society, on paper at least.  And who would argue?  Perhaps the disgruntled corporate who watches profits dip due to increasing administrative and professional cost?  Maybe, but largely the South African employer and consumer can rest easy with an admittedly burdensome but top class legislative framework in consumer and employee rights.