The legal implications behind employees’ digital behaviour and the fictional “masks” offered by digital work tools that employees that have access to, merit scrutiny. In essence, it is actually time to unmask digital harassment behaviour.
The tendency for behaviour that is unacceptable and not tolerated in the physical world to manifest in the corporate cyber world under a false impression of impunity exists. People sometimes tend to think that they are free to adopt masks to engage in behaviour they would not ordinarily engage in face to face.
This based on an assumption that such digital conduct and unacceptable social and work etiquette is not within the realm of law. Well they are wrong. Labour laws and a series of other laws with security dimensions will and do have the potential to curb the metastasis of digital harassment.
Ubiquitous Digital Tools and Behaviour
There is pervasive influence and access to digital media and devices in your work day: Your e-mail, company electronic bulletin boards, sms medium, fax, skype, IM, video conferencing, intercoms and PA intercoms. How employees and employers use them – is determinative of whether they are tools of communication or potential liability instruments.
Behaviours and unacceptable use range from unsolicited mail and telephone calls with bullying or sexual innuendos or persistent flirting and transmission of digital pornography and hacking and/ manipulation of email accounts. Then, there is that work email or telephone interaction with bullying undertones. Digital harassment forms can get nastier with cyber stalking and intimidatory threats and attacks to person and livelihood.
These are some of the forms of Preventive Measures at company level can be implemented:
1. Monitor employee digital content and intercepting intimidatory and harassing communication. In terms of the Regulation of Interception of Communications and Provision of Communication- related Information Act No. 70 of 2002 an Employer needs to obtain consent before interception. This consent is best set out and assented to in the employee’s contract of employment or in a separate interception policy that all employees sign of affirmatively assent to electronically. Knowledge of regulatory provisions and safeguards is key.
2. Consider use of technical tools to gauge “threatening, intimidatory” conduct online. These may just be useful gatekeepers or useful alerts.
3. Educate employees against digital harassment. Advocacy brings awareness.
4. Implement / Supplement Company Code of Conduct and Harassment Policy with information on digital harassment and its various forms.
5. Highlight disciplinary action for digital harassment in the Disciplinary Code and Harassment policy.
It is by ensuring that that the above steps are implemented and enforced – that such digital harassment can be minimised and prevented. It is when they are not stemmed and persist that labour laws outreach and implementation becomes key.
Employees can lodge a grievance internally against a harassing employee and in more serious cases – a criminal charge as well have as recourse to protection orders under the Protection of Harassment Act No. 17 of 2011 (wef 27 April 2013). With the ubiquitous nature and dissemination outreach of digital technologies there is also the threat of a defamation suit. Then there is the issue of the employer’s vicarious liability and this is what you want to hedge your company’s risk profile against.
Disciplinary measures and law suits set into place a new trajectory of events and action. They can lead to disciplinary measures in the form of warnings, suspension and termination of employment as well as criminal liability and/ or civil liability for companies and individuals.
It is therefore ethical and prudent for companies to be aware of digital harassment, to take preventive measures and to proscribe digital harassment. Awareness combined with education, has the potential to curb this metastasis.
Published in Business Day, Business Law and Tax Review, 9 September 2013, South Africa