Last night 27 Dinner rocked. Not that it never rocks, but because it touched a nerve on one of the most pertinent issues as far as social media and the law in South Africa are concerned.
I had many thoughts, as i’m sure many others had, after the discussion. I thought I’d write them down but realised there were too may for one post I’ve decided to work on a series, this being the first post from my thoughts. (We’ll see how the rest goes son enough…)
I have no legal background and the substance of my post is from that of a writer. A blogger. I will not be prescriptive, I’m only trying to make sense of social media and the law in the South African context.
Let’s get to it then…
The line up comprised Paul Jacobson, Emma Sadlier, Sipho Hlongwane, Mike Stopforth and Consilium Legal (My memory fails me. I seem to remember Twitter handles better. Eish..)
Mike Stopforth was the host and facilitated the discussion. The only person on the panel who wasn’t a lawyer was Sipho (aka) @ComradeSipho. (To his credit he did study law but never completed).
It became very clear early into the discussion that the lawyers in the panel had different views on a number of issues. This gives insight into some of the challenges involved in court cases involving social media, in South Africa in particular.
Platforms have their own policies that need to be filtered through existing laws for new platforms that evolve faster than laws can be created.
“Who Owns?” Discussion
The discussion I knew would definitely be discusses at the dinner was one of ownership. That is, if an employee had a social media account that got associated with his employer’s, and as a result built a following, who owns the followers? And, should the employee cede the account when he leaves?
Like Sipho, I find it rather absurd that we can have a debate about who owns followers? Really? Is that a valid debate? I will humor you, and myself and attempt to engage the question.
Unless the employer, can prove that the reason followers followed the employee was due to their association to their brand and that it was a result of marketing on their time, only then can they claim followers.
I still cannot make sense that followers can be ‘owned’ by a brand. If anything, it is the other way round. It is a privilege, for a brand, that its users choose their product over another.
Another assumption that companies or brands could be wrongly making is that people following their brand actually use their brand. With that they also make the assumption followership is akin to endorsement.
The first question that needs to be answered is do brands / companies really own the followers on social media? Can followers really be owned?
There are some brands I have followed as a case study of how terrible a brand could be. Some people follow brands as means to snoop on their competition.
Which brings me to this:
1. If employers insist the employee who’s leaving cede his account on the grounds the own followers, employers will need to prove that each follower followed the employee solely because of their association and position with the brand.
The reason I use ‘solely’ is in the event where tweets of the employee, for example, would’ve been a mixture of personal tweets and brand tweets. . Think about it…
2. Prove the monetary value each of the followers. This may mean need to prove that the individuals’ following results in financial gain for the brand, which an employee may be now taking away.
With all this being said if people were following an individual solely because of their brand alignment or position in a company, and, are loyal to that brand, surely they will unfollow the individual and follow brand other ways. Right?
If the followers really are loyal brand followers they will continue to follow the brand.
On Another Note; Brand Reputation
Could the fight for followers by brands in the aforementioned context, a sign of unhealthy and insecure brands? If a brand is healthy and strong enough it shouldn’t need to worry about losing followers due to an employee leaving.
I understand that brands need to protect themselves. However, this needs to be defined… Or can it be? At what point can we say the brand is acting in its best interests or is it being unreasonable?
When brands get involved in a fight for followers with leaving employees they must assess the risk that action can have on their image.
Followers can have a single or dual affinity to an account. To either the individual and the brand or both… An ‘attack’ on the individual could result in shunning the brand by the followers that were influenced by the individual.
There’s obviously the contract dynamic which, is a game changer and another discussion on its own…
Of all the panelists at the dinner, Paul Jacobson made the most references to understanding context when it comes to lawsuits related to social media. As with other law related things, there is limited room for general responses, as each instance will have its own dynamics.
[image by ER24 EMS (Pty) Ltd. | cc]