Evolution of social media case law
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.
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) 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  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.
A NEW SOCIAL WORLD