LEGAL CHALLENGES WITH SOCIAL MEDIA

I was on facebook recently when I saw an advertisement that caught my eye. It was an advertisement for a product that promised users weight loss in seven days and apparently had no side effects. The owner attested to this by posting her before and after pictures. To access the product all you had to do is inbox the owner and you would have the product delivered to you.

 

This had me thinking that a lot of unregulated trade goes on through social media pages. Some of the trading could have an adverse effect on the consumers as in the case above, the pills were imported from the USA and there was no way the consumer could attest to the safety of this product. A lot of illegal trading also goes on through the social media with some of the facegroup pages having illegal objects. Sometime last year there was a lot of public outcry about a facebook page formed by campus students, “campus divas” and that was used to promote prostitution. The government loses a lot of revenue from unregulated trading that goes on through social media.

 

The challenges faced by increased use of social media are common globally and are not common only to Kenya. The question has been whether to regulate social media or not. The Constitution provides for freedom of information and freedom of speech. This means the government would be going overboard in totally outlawing any forms of social media for that would be curtailing the bill of rights. In some jurisdictions however, social media has been totally outlawed. The issue for consideration is whether to regulate some aspects of social media. There is already some form of regulation through the CCK (Communication Commission of Kenya) and there is the Kenya Information Act that provides a limited regulation of social media. It is for example an offence to use social media to promote illegal activities. Already a number of persons have been charged in Kenyan courts for misusing social media. In the USA there is a more detailed regulation of social media and perhaps it’s something our legislators can look into adopting.

 

However when it comes to your business, HR policy, computer policy and employment laws can provide some sort of social media regulation on usage of social media for your staff. For example you can specifically contract that staff are not allowed to make any posts that would breach on the confidentiality and image of your firm. It is however difficult to totally control usage of social media due to the constitutional provisions. For example if you sacked somebody on the grounds that they belonged to a certain social media group and the person can show that the group has no direct impact on your business, then it would expose you to a suit on wrongful termination.

Most businesses do not have a social media policy and it is advisable to have a social media policy to ensure your staff uses social media in a way that enhances your business. It is also good to train your staff on how best to use social media in the best interests of your business. There is a US company that had to sack a staff member after her post suggested she stood a risk of contracting HIV as she was coming to Africa. The company had to issue an apology and also take disciplinary action against the employee.

 

When drawing up your social media policy, consider the needs of your business vis a vis existing laws. A too stringent social media policy is unconstitutional and a too lax one would not serve the intended purpose.

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