Twitter and Facebook disclaimers will not protect you against being fired

Facebook and Twitter disclaimers have no legal standing in South Africa and will not protect you against being fired if you make derogatory statements about your employer.

Nicholas Hall, an associate at the law firm Michalsons and a legal expert in the digital entertainment industry, said many South Africans have Twitter and Facebook disclaimers.

These include lines like “My Words Are My Own” and “Retweet is not an endorsement”.

These disclaimers aren’t a binding contract between a person and their employer, said Hall.

“People must realise that anything said online can potentially be linked back to their employers.”

Nick Hall
Nicholas Hall

Since the conduct of an employee is grounds for dismissal in terms of South African employment law, social media comments which hurt a company can cost employees dearly.

Verlie Oosthuizen, a partner at Shepstone & Wylie Attorneys who specialises in social media law, concurred with Hall.

Oosthuizen said if you make comments on Facebook or Twitter which are harmful to your employer, they can take action against you – even if you have a disclaimer.

Oosthuizen said there is not an absolute right to freedom of expression in South African law and it will be balanced against competing rights.

“Making inappropriate comments on a social media platform, which can be linked back to the employer and are objectively harmful to that employer, may justify disciplinary action against the employee,” said Oosthuizen.

Disclaimers have nearly no value

Hall said disclaimers on social media profiles essentially have no value and will not protect users against legal action from companies or individuals.

“If a tweet is defamatory or breaks some other law, nothing in your profile can protect you,” said Hall.

Oosthuizen said it may be better to have a well-worded disclaimer than none at all.

“However, it does not mean that a person can escape liability completely,” she said.

“It can provide a measure of protection, but will not protect a user if they are using hate speech or highly-defamatory material.”

Disclaimers and retweeting or liking a post

Many Twitter users state in their profiles that “retweets are not endorsements”, but this disclaimer does not provide legal protection.

Verlie Oosthuizen
Verlie Oosthuizen

By retweeting a comment or liking a Facebook post, users engage in “the chain of publication”.

“When a person likes or shares a comment, they are publishing that comment once again, especially in a Facebook and social media context, as it will appear on that person’s newsfeed,” said Oosthuizen.

Hall said in terms of local law, people who republish defamatory content are as liable as the originator of the content.

Sharing, retweeting, and a like counts as a publication. All a disclaimer can do is frame context for your followers, but it “certainly won’t provide any legal protection”, said Hall.

Oosthuizen said having a disclaimer does not remove the person from their position in the chain of publication.

She said the value of the disclaimer will depend on the facts of the case. The liability may be diminished, but it does not offer full protection.

Now read: You can face legal action for liking or sharing a Facebook post

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Twitter and Facebook disclaimers will not protect you against being fired