Insult posts on social media by agents

Can an estate agency be held liable for defamatory messages posted on social media by an estate agent?

An employer may be held vicariously liable, should an employee be found guilty of a delict where certain circumstances are present. Should those circumstances not exist, the employer cannot be vicariously liable.

This question can best be answered by looking at a case study recently cited by the Law Department of the University of South Africa. 

Let’s say that Tina, an estate agent, works at Horizon Realty Group in Johannesburg. She commissions a well- known clothing designer, Sizulu, who has a design shop in Cape Town and London, to create several dresses for her. They have a dispute over payment and Sizulu suspends her work on Tina’s dresses. Tina hears about this while she is working at the office and immediately sends out various tweets on Twitter and posts messages on Facebook accusing Sizulu of making “delusional accusations” and referring to the designer as a “thief who uses unethical business practices”, “a drug addict, a prostitute and an unfit mother who had lost custody of her child." 

The comments went to Tina’s 542 Facebook friends (who are from South Africa, the UK, the USA and Australia) and her 1 250 Twitter followers. She also includes these comments in emails which she sends to previous clients of Sizulu. Due to the bad publicity, some of Sizulu’s clothing contracts are cancelled and she suffers financial loss.

Vicarious liability is based on a delict. An employer may be held vicariously liable, should an employee be found guilty of a delict where certain circumstances are present. Should those circumstances not exist, the employer cannot be vicariously liable.

In summary, an employer can be held liable for a delict committed by an employee only if (i) an employer-employee relationship existed at the time of the delict; (ii) the employee committed the delict and (iii) the employee acted within the scope of his employment when the delict was committed. Furthermore, all the elements of a delict must be present.

Should an employee commit a delict, such as in this case, and there is no offence to be raised, Horizon Realty Group can be held vicariously guilty of defamation. However, two more circumstances must be present, namely that there must be an employer-employee relationship and, secondly, the employee must act within the scope of his employment.

An estate agent is regarded by the law in South Africa as an employee and therefore is subject to labour law, as well as the statutory provision that guides the industry (Code of Conduct prescribed by the Estate Agents Board).

Tina is employed by Horizon Realty and therefore, an employer-employee relationship is present. Ordering dresses from a designer falls outside the scope of the employment agreement between an estate agency and an estate agent and the third element is therefore not present.

The Estate Agency has a defence as Tina’s actions (publishing the defamatory remarks on Facebook) fall outside the scope of her employment. Tina’s agreement with the designer has been made in her private capacity. However, Tina sent the email from her employer’s office. One has to look at the computer policy of the real estate agency and get confirmation whether such conduct was prohibited by the employer.

Whether an employee acted within the scope of his or her employment is not always that easy to determine and in Minister v Police v Rabie the court held the testis both objective and subjective. The intention of the employee needs to be determined (the subjective part) and the court held that if the intention was solely for the employee’s own interests, it falls outside the scope of the employer-employee relationship. Objectively, the court also determines if there is a link between the conduct of the employee (for his own interests) and the business of his employer, the employer may still be vicariously liable.

In other words, the employer has to prove that the employee subjectively promoted her own interests and, secondly, disengaged herself completely from the duties relating to the employer’s business.

Should the conduct of the employee be forbidden by the employer, it will be sufficient proof that the employee disengaged herself from the business of the employer; hence the importance of the computer policy of the employer.

Moira Campbell points out that employees such as Tina can access social networks through the employer’s internet facilities, as well as their own private IT facilities. This increases the risk that employees may breach a company’s internet policy. Should we presume that Horizon Realty has internet facilities available at all hours for their staff to use, it is clear that there is a risk involved to the employer, Horizon Realty. Moira warns that employers should protect their business to put well-conceived social media and internet policies in place as it will help employers to rely on ‘reasonable steps’ defence when defending claims referring to discrimination, defamation and harassment.

Statutory regulation regarding internet use and social media is slow to catch up with the speed of development. However, a number of cases already decided are the best sources to give clarity for the moment. In Otomewo v Carphone Warehouse Ltd the case involved two members of staff posting a status update on the claimant’s Facebook page, without his permission or knowledge. It read as follows:“finally came out of the closet. I am gay and proud”. The posting took place during work hours and during the course of employment and was an interaction between staff and management. The employer was found vicariously liable for the conduct which amounted to harassment on the grounds of sexual orientation.

Moving to the UK and the case of Teggart v TeleTech UK Ltd, an employer dismissed an employee for posting offensive comments about a colleague on his Facebook page. The tribunal found that when the employee posted the comments on Facebook they became public and therefore he could not rely on his right to respect for his private life or the fact that the comments were posted outside of work. His comments constituted harassment and therefore the employment tribunal dismissed his claim for unfair dismissal.

Midgley remarks that e-mail communication during work hours which includes defamatory statements about a colleague, may cause the employer to be vicariously liable for the conduct of the employee.

My opinion is that Tina was angry with her designer and acted totally in her own interests, and, secondly, she disengaged totally from the employer. Horizon Realty could not be held vicariously liable for Tina’s defamation.