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. 

Consumer Protection and the Internet

Buying goods or securing a service provider over the Internet is no longer taboo or overly risky.  The security protocols that protect our personal information are maturing with age and the Internet market place is moving from a pimpled teenager into a sophisticated adult. 

What about consumer protection? This too has moved from the haphazard and ad hoc to slick and professional (in terms of the remedies available on paper to a consumer). I will confine this discussion to three issues; fraud, Internet spam and returning of goods purchased electronically.

Fraud

Fraud is still a factor with online transactions, but a less problematic one. The Internet marketplace is competitive and dynamic.  As a result, most Internet companies will refund in cases of fraud where there is no negligence on the part of the consumer.  In South Africa, the likes of Takealot.com, Kalahari.net, Bidorbuy.com are relatively safe marketplaces taking their lead from the larger, more established Amazon.com, Play.com and Ebay.com.  Today, even the smaller Internet enterprises have advanced security procedures in place and will offer guarantees. The risk is present but is becoming minimal.

The South African definition of fraud is “the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.”  With criminal law, one must prove, beyond reasonable doubt, that all elements of the crime are present – in other words, strict compliance to the common law definitions.

Consider someone fraudulently obtaining credit card details and purchasing an airline ticket to the value of R10 000 ($1000).  The unlawful and intentional making of a misrepresentation is the fraudster using your credit card details to purchase an airline ticket.  The next part is the damage, which causes actual prejudice or which is potentially prejudicial to another.  A fraudster purchasing an airline ticket, without my consent or knowledge, is clearly prejudicial.   As a result, the fraudulent act satisfies the definition and the fraudster may suffer criminal penalties.

In addition, in terms of the Electronic Communications and Transactions Act 25 of 2002 (“ECT Act”), it is a criminal offence to, amongst others, tamper with electronic data and overcome security protocols. The penalties for fraudsters may be severe, however, the extent to which corporate entities report and follow up on fraudulent behavior remains in doubt. 

Personally, I have been purchasing goods and services on the Internet since 1998, well over a decade.  I have been the victim of fraud on three occasions, receiving full refunds and profuse apologies on each occasion.   The most recent of theses incidents was a few weeks ago – a fraudster purchased an airline ticket to Dubai on my credit card.  Within 48 hours the money was back in my account, two phone calls and one beurocratic form later and harmony had been restored.  Cheers Nedbank! Should I elect to do so, I have the ability to lodge a criminal complaint.

The point?  Buying on the Internet should be as normal as brushing your teeth by now.  As a result, the technologies and consumer service are advanced and accessible.   

Internet Spam

Wikipedia accurately defines Internet spam as the use of electronic messaging systems to send unsolicited bulk messages, especially advertising, indiscriminately.

If you have used the Internet in any meaningful way over the past decade you will have a fairly good idea about spam.  Essentially, it is a nuisance and is designed to trick and overwhelm consumers. In South Africa, in terms of section 45 of the ECT Act it is, under certain circumstances, a criminal offence to send unsolicited commercial communications to consumers. 

Moreover, the Consumer Protection Act No 68 of 2008 (“CPA”) prohibits marketers (annoying SMS messages, telephone calls etc.) contacting consumers at certain times, notably, public holidays and most weekend time. Additionally, the CPA creates an opt out mechanism which a consumer can enforce.

So, what can you do if bothered by spam?  Firstly, the Direct Marketing Association of SA (DMASA) operate a “do not contact” list which appears effective. In extreme circumstances, one may open a criminal case.  There are options available.

Returning goods purchased online

With the rapid convergence and development of technologies, the Internet marketplace has adopted a more modern, pragmatic approach.  Make no mistake, as with any part of society, it will contain elements that will attempt to deviate from the accepted norm, but for the most part, as with the situation on fraud, a solution-orientated approach appears to be the latest trend.

From a legal perspective, the ECT Act and CPA both provide substantial remedies to consumers electing to return goods or renage on agreements after a cooling off period.  It is difficult to give a “hard and fast rule” as so much is dependent on the nature of the product and circumstances of the return.  A general review of the CPA provisions can be found in an earlier article here.

Basically, a consumer has a “cooling-off” period, implied warranties and rights relating to representation of the product or service.  The consumer is a protected species in this regard and if you are having problems, a remedy is probably available so do not accept the proverbial run around.  Consumer protection is here globally, and here to stay.

Same-Sex Marriage Laws

America is on the verge of deciding on two key issues relating to same-sex marriage.  Firstly, whether legislation prohibiting same-sex marriage is lawful, and secondly, whether it is lawful to withhold certain Federal State benefits on the basis of same-sex marriage. Put in a different way, America is deciding whether gay couples should be treated the same as heterosexual couples.

By way of example, in Missouri the law allows an employer to fire an employee if he or she says they are gay.  There are 29 States in America where it is lawful to fire someone for being gay. Surely, in the 21^st century this should not be permitted – as a global society we must learn to be tolerant and acutely aware of diversity. US politicians, for the most part, appear to be in favour of Lesbian/gay/bisexual/transgender (LGBT) equality with current US president Barack Obama publicly backing same-sex marriage.  Indications are that the US Supreme Court will rule in favour of equality rights extending to all persons, regardless of sexual orientation.

To give some further context, in the United States, gay married couples are precluded from certain tax benefits and benefits relating to death and retirement. Conversely, in many other parts of the developed world, equality on the basis of same-sex marriage is recognized.  South Africa, for example, is at the forefront of global legislation relating to equality rights.  The Constitution of South Africa 1996 contains an equality clause which poignantly notes: “everyone is equal before the law and has the right to equal protection and benefit of the law”.

Rewind four decades and America was leading the way in social equality law making.  The seminal case relating to a mothers right to abortion, Roe v Wade, set an example that many countries followed; a mothers right to abortion is limited to the circumstances of each case and the trimester within which the abortion is requested to take place, it is however permissible, under certain circumstances, for a mother to make her own choice regarding abortion.

At the risk of verging into academics, the foundation of South Africa’s legal system is Roman-Dutch and English.  As in all other developed areas, at that time, the law was written and interpreted in a way that never included current social dynamics and was largely patriarchal in nature. Same-sex marriage.  Male rape. Same sex adoption; these issues had never been considered in a judicial sense.

In the matter of Masiya v Director of Public Prosecutions Pretoria the Constitutional Court grappled with the common law definition of rape, which was, at that time, the unlawful penetration of a woman’s vagina with a man’s penis.  The wording was problematic in that it did not include male rape nor did it include rape with external, foreign objects nor did it include anal rape.  Simply, it was gender specific and did not reflect the changing values and norms of our society.

The result was that a rapist, who elected to rape men and boys, was charged with the far lesser offence of indecent assault. The resulting sentence was clearly far lower. The Constitutional Court in South Africa recognized the problem and ordered the development of “the common-law definition of rape to include the non-consensual sexual penetration of the male penis into the vagina or anus of another person”.  The resulting definitional change of rape as, “an act of Sexual Penetration of a victim, without their consent” is far more appropriate.

Insofar as gay marriage is concerned, in South Africa the 2005 matter of Minister of Home Affairs v Fourie dealt with same-sex marriage.  Marriage, at that time, was defined as a union of one man with one woman .  All nine judges unanimously agreed that gay marriage should be permitted, particularly in light of section 9 (equality clause) of South Africa’s constitution, and the 2006 Civil Unions Act was the final result.  This Act provides for same-sex marriage and, from 30 November 2006 same-sex marriage has been permitted in South Africa.

The United States is often looked upon as a world leader – in business, technology and legal jurisprudence. The imminent decision on gay rights will define and shape many US Supreme Court decisions for years to come, and by implication, influence and shape a new chapter of equality rights on a world wide stage.