Evo­lu­tion of so­cial me­dia case law

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - AYE­SHA DA­WOOD

WHEN you send an in­vite and/or ac­cept an in­vi­ta­tion on­line an un­equiv­o­cal of­fer and ac­cep­tance takes place. The Latin term is an­i­mus con­tra­hendi, which means the ex­press and im­plied in­ten­tion to be bound by one’s of­fer and ac­cep­tance has oc­curred.

Es­sen­tially, you have agreed that your e-mail ad­dress may be used to send you mail, in­clud­ing un­so­licited com­mer­cial mail. Of course you can then ex­press a pref­er­ence to “opt out”, which con­sti­tutes a re­vo­ca­tion of your of­fer.

An agree­ment is made when an of­fer is ac­cepted, and by is­su­ing an in­vite you ten­der an of­fer. By ac­cept­ing the in­vite the re­cip­i­ent has ac­cepted your of­fer. This means you have both con­sented to the use of each other’s email ad­dresses.

Face­book terms of ser­vice are tai­lored to al­low you the op­tion of con­trol­ling who can look you up by us­ing the e-mail ad­dress or phone num­ber you have pro­vided. The op­tions are: ev­ery­one; friends of friends; and friends. This al­lows you a mea­sure of au­ton­omy but it does mean it is limited to three choices and that of th­ese choices the of­fer and ac­cep­tance of an in­vi­ta­tion means that you have con­sented to use of your e-mail.

LinkedIn of­fers a friendly user obli­ga­tion guide: “Do not abuse the LinkedIn ser­vice by us­ing it to spam, abuse, ha­rass, or oth­er­wise vi­o­late the User Agree­ment or Pri­vacy Pol­icy.” Here too the law of con­tract ap­plies and of­fer and ac­cep­tance im­ply that you have con­sented to use of your e-mail.

Twit­ter gives you the op­tion of al­low­ing “oth­ers to find me by us­ing my e-mail ad­dress”.

If you do tick this you have a dou­ble con­sent — twit­ter con­sent and the law of con­tract — in play. This is why the law of con­tract be­comes and is so sig­nif­i­cant in re­gard to your so­cial me­dia sites — and your pri­vacy.

In the realm of so­cial busi­ness, where your con­tact e-mail ad­dress is placed in the card drop-off, in­cen­tives need to be an­a­lysed. You are of­ten in­vited to place your card in a box with a prom­ise that a draw will take place and a prize of­fered. In this case the of­fer is made with the in­vi­ta­tion to place your card. Your ac­cep­tance of the of­fer is when you drop your busi­ness card into the in­cen­tive box. An agree­ment by con­duct is con­sti­tuted. So think care- fully be­fore you drop off your card into a box, how­ever tempt­ing the prize is.

Pru­dence and choice are al­ways yours in your so­cial me­dia en­gage­ment. You can al­ways elect to re­voke your ac­cep­tance or sim­ply de­cide not to list your e-mail ad­dress.

South African case law hints at the in­ter­sec­tion of so­cial me­dia plat­forms and case law and re­flect a wider am­bit of laws and com­mon sense. Face­book­sub­sti­tuted ser­vice for le­gal doc­u­ments were al­lowed in the KwaZulu-Na­tal High Court in CMC Wood­work­ing Ma­chin­ery ( Pty) Limited and Pi­eter Oden­daal Kitchens Case No 6846/2006 where ser­vice by a sher­iff was not pos­si­ble as the re­cip­i­ent avoided ser­vice. This case hints at the tra­jec­tory of so­cial me­dia le­gal trends that may just be emerg­ing, and while the court does not em­pha­sise or look at con­trac­tual prin­ci­ples, as the par­ties were not friends but rather looked at this in the realm of pri­vacy as the send mes­sage icon was pri­vate to the re­cip­i­ent.

Pri­vacy again reared its head in the case of H v W (12/10142)[2013] ZA GPJHC1 (Jan­uary 30 2013), which is cur­rently on ap­peal. The court noted that “not only does our law pro­tect ev­ery per­son’s right to dig­ni­tas (in­ner tran­quil­lity) but also to fama (rep­u­ta­tion)”. Pri­vacy (in this case the right of one’s rep­u­ta­tion to not be de­famed) seems to as­sert it­self in so­cial me­dia lit­i­ga­tion when the court held that the post­ing of a defam­a­tory Face­book let­ter be re­moved from Face­book and other so­cial me­dia sites.

Case law and de­ci­sions, while not in re­la­tion to the tenor of this ar­ti­cle re­gard­ing e-mail in­vites and ac­cep­tance but in the realm of em­ploy­ment re­la­tions, have held that an em­ployee’s pub­lic Face­book sta­tus up­dates were ad­mis­si­ble in their dis­missal for mis­con­duct.

Th­ese Com­mis­sion for Con­cil­i­a­tion Me­di­a­tion and Ar­bi­tra­tion (CCMA) cases were de­cided in the realm of ad­mis­si­bil­ity and the rules of ev­i­dence: Fred­er­icks v Jo Bar­kett Fash­ions [2011] JOL 27923 (CCMA) and Sedick and An­other v Kris­ray (Pty) Ltd (2011) 8 BALR 879 (CCMA).

South African case law in re­gard to so­cial me­dia is only just start­ing to emerge and will de­velop, of­fer­ing in­sight into this new and fas­ci­nat­ing evo­lu­tion.



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