Last month, a subeditor at media giant Avusa's Sowetan newspaper became the first South African to be fired for blogging. Llewellyn Kriel's personal blog on the blogging platform of rival Mail & Guardian discussed the outcome of a human-relations climate survey and the skills crisis at Avusa. Accused of disclosing confidential information and bringing the company into disrepute, Kriel was sacked after a disciplinary hearing. He has taken his dismissal on appeal and intends to take the case to court.
For employers, what their staffers blog about in their personal time can be a risk to the company.
Paul Jacobson, a new media lawyer at Paul Jacobson Attorneys (and who himself blogs), says as more companies become active on the Web and adopt new media tools like blogs and podcasts, and as more employees access social networks such as Facebook, it becomes more important for companies to know how to minimise the risks.
"There are a number of issues to consider, including privacy, intellectual property rights, freedom of expression and even unlawful competition," says Jacobson. "Employers also need to consider that they could be held liable for employees' misdeeds, so there are good reasons to take precautions."
His advice to companies is to develop clear -use policies for internal users of the company's IT infrastructure, including blogs. "Monitor what's been said about the company by bloggers and - where the company's rights are infringed - take swift action."
Jacobson says most employment contracts don't address the challenges presented by the use of blogs and other social media in the workplace. "It's difficult to amend contracts of employment, so existing policies should be reviewed and revised to cater for changing circumstances, and employees must be fully briefed on these updates."
However, the real threat is not from bloggers using media platforms, but from disgruntled staff who set up anonymous blogs to rant about their employers. "It's as easy as setting up a Google mail account under a pseudonym," says Internet lawyer Reinhardt Buys of law firm Buys Incorporated.
He says in SA the law has tended to swing in favour of the right to free speech, though a number of defamation cases have been successful.
But Buys says many of these cases are settled behind closed doors. "Most involve personal vendettas, rather than libellous information about companies."
Overseas, settlement figures in online defamation cases are about 10-15 times higher than in traditional media such as newspapers, says Buys. "That's because the Internet reaches so many more people across jurisdictions and the damages can be much bigger."
Leppan Beech director Michael Schottler says: "If employees raise legitimate concerns or issues, they have at times been successful in claiming protected disclosure as whistleblowers."
But he says the same terms and conditions apply to any mode of communication - whether via e-mail, by blogging or simply by talking to someone outside the company.
A number of cases overseas suggest, though, that the law may continue to develop in favour of employees. In the UK, a Waterstones employee was dismissed in 2005 after he made critical remarks about Waterstones and compared his superior with the pointy-haired boss in the Dilbert cartoons. The employee successfully appealed against the dismissal and was offered reinstatement.
