Legal repercussions in the digital age

Author and lawyer Emma Sadleir is one of the country’s leading social media legal experts. Founder of The Digital Law Company, she’s the first point of call for anyone who’s in a bit of trouble as a result of misusing social media.

GQ: What inspired you to create The Digital Law Company?

Emma Sadleir: I was at a big law firm working in media law just as the social media revolution was erupting and I saw a gap in the market for a specialist in social media. There were a couple of cases that really made me realise that I needed to create something in this space.

A young woman had been surreptitiously filmed having sex by her ex-boyfriend. He was ostensibly playing music using his laptop but was actually recording her – in such a calculated way that his face was out of the shot. Six months after they broke up he uploaded the video onto a whole lot of porn-sharing sites, tagging her identity. I’m afraid it’s so common now, but back then I was absolutely horrified and really wanted to help her. A parent whose son had created a spoof Twitter account in the name of his high-school principal also contacted me. It was a typical schoolboy prank but he was expelled from school on the cusp of his final exams.

There was a need for education and crisis management – I realised that people were clueless about how badly things could go wrong and that there were actual laws that could help and protect people. I left the big law firm, cashed in my provident fund and started on my own. It was just right time, right place!

GQ: What types of cases do you usually deal with?

ES: Harassment, cyberbulling, hate speech, crimen injuria, revenge pornography, ‘sextortion’, image-based violence, defamation, privacy infringements, employment law, social media grooming, identity theft, reputation management, crisis management, and intellectual property issues.

GQ: There have been many discussions about the dangers of social media posts and how it could affect your hiring potential – legally, can companies use your social media posts against you? ES: I think it’s not a question of if a potential employer might check your online presence, I think if they don’t they are acting negligently. When you start working for that company – all the customers/clients/ colleagues/business partners will check you out online and if there’s something dodgy, the employer must know about it.

Essentially, when you start working for a company your online reputation becomes inextricably linked with the reputation of the company.

That said, in the Facebook stalking, social media audit phase of recruitment, the potential employer will likely come across personal information that you wouldn’t ordinarily be able to ask in the recruitment process.

For example, religion, political views, health status etc., and here, the potential employer may not discriminate on the basis of this information.

GQ: Can you give us some insights into SA’S most problematic online areas?

ES: The biggest issue is holding international companies like Facebook, Twitter and Google accountable under South African law. They take the approach that they do not have jurisdiction in SA so if you want to sue them you need to follow them to America. These big companies are very slow to hand over identifying information of who is behind illegal accounts. For example, someone will start a “teen sluts of Jozi” Instagram account.

Sometimes we are successful in getting Instagram to shut down the account, but they won’t hand over the identifying information of the account creator unless there’s a court order, which is often prohibitively expensive to get. We need greater buy-in from these companies to keep users safe.

‘If someone says no the answer is no. The more private the content, the greater the need to get consent’

GQ: Is there still a line between personal and professional in relation to social media?

ES: I don’t think there is such a thing as personal capacity. You are who you are in the real world when you go online – there’s no magic wand you can wave which would absolve you of your duties to your employer. I see disclaimers like “I work at X company but I tweet in my personal capacity” – if the first tweet below that is something racist you WILL be fired.

I also see a trend towards people not saying where they work on Facebook or Twitter, but then they have a Linkedin account, which makes it very easy for the digital vigilante mob to see where you work if you get it wrong and cause a social media stir.

Bottom line is that as an employee of a company you can’t bring that company into disrepute by your conduct online – or your conduct in the real world which is filmed or documented and posted online – even if that conduct is outside of work hours and outside of work premises. For example, the PWC employee who was recently fired after ranting at a woman at Cape Town International Airport – it had nothing to do with his job but it was recorded and circulated, which led to his firing.

GQ: What have you found to be most lacking in digital and social media education?

ES: How dangerous digital content is. When something is digital it’s out of your control. Phones get lost, phones get stolen, accounts get hacked people are malicious and people take screenshots.

GQ: What is a social media trap that both adults and teens tend to fall into?

ES: Believing that people are who they say they are on the internet.

GQ: In terms of brand management and fixing a damaged reputation – what pitfalls should you avoid?

ES: Adding fuel to the fire. Sometimes by responding or seeking to take legal action to get something removed – you actually make things a whole lot worse and more people find out about it. We call it the Streisand Effect. For example, take Malusi Gigaba’s private sexual video. It had only been seen by a handful of people when he released a statement saying how it violated his rights – then the whole country basically saw it and it landed up on Pornhub. Sometimes it’s better to just to sweep things under the carpet.

GQ: You have successfully campaigned for new laws and the updating of old ones. Can you please tell us more about this? ES: The most important recent law reform came about with the introduction of a revenge porn criminal offence – what we should call image-based violence. I made various submissions to Parliament on the new law.

The law says that ‘any person who knowingly distributes private sexual photographs and films in any medium including through the internet, without prior consent of the individual or individuals and where the individual or individuals in the photographs or films is identified or identifiable in the said photographs and films, shall be guilty of an offence and liable upon conviction, to a fine not exceeding R300 000 or to imprisonment for a period not exceeding four years or to both a fine and such imprisonment.’

BOOM!

GQ: Social media has normalised the idea of sharing without consent. When it comes to consent in the digital and social media space, is it clearly defined in black and white?

ES: It’s a pretty grey area. I would never post a picture of someone else’s child without asking the parents for permission. If someone says no the answer is no. The more private the content, the greater the need to get consent.

As much as I sound like a killjoy, it’s not your human right to take pictures and videos of your friends in embarrassing and obscene situations. When your mate is drunk and can’t say, ‘don’t take the picture’, then don’t take the picture.

GQ: What are the toughest cases to successfully prosecute?

ES: The most difficult cases are the anonymous ones where we don’t know who is behind the account. The root of just about all evil on the internet is anonymity.

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