The digital age is here. The developments in Information Communication Technology (ICT) are terrific.
New Perspectives,Cephas Mavhondo
Every aspect of our lives, including our businesses and our laws are affected. The media is awash with stories about these developments. Even criminals are devising new ways of achieving their criminal goals, such as phishing.
Phishing is the attempt to acquire or acquiring sensitive information such as usernames, passwords, and credit card details, often for malicious reasons, by masquerading as a trustworthy entity in an electronic communication.
This means that the business society and justice systems ought to be prepared on how to deal with these technological developments. Computer and internet-based criminal acts are now common. The advent of internet-based social media means something else. Cases in which people have been defrauded through WhatsApp are on the rise. Zimbabwe is trying to keep abreast by crafting cyber laws such as the Computer Crime and Cyber Criminal Bill, Electronic Transactions and Electronic Commerce Bill and Data Protection Bill.
Our civil justice system is also moving in the right direction as we are witnessing the proposed amendments to the civil laws of the country through the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Bill, 2016.
In this wake of technological changes, waiting is not an option. It is my view that in the realm of business in general and the labour market in particular, it is necessary for companies to have ICT policies, like any company policy affecting the employment relationship, ICT policy should be linked with the contracts of employment for it to be effective. In other words, it is advisable to have a clause in the contract of employment to the effect that the employee agrees to be bound by the terms and conditions of the policy. Generally for business to come up with an effective ICT policy, it is necessary to hire a lawyer who can draft such policies.
Alternatively, for those industries that require what are called collective bargaining agreements (CBAs) and for companies that have company codes of conduct, it is advisable to ensure that such CBAs and codes of conduct capture the relevant aspects that govern use of information technology.
It is important to note that although technology is bringing new concepts and methods of communication that are faster than the traditional ones, when it comes to the law, it is not like completely new concepts of law have to be invented. In my view, what should happen is our parliamentarians and the courts should apply or modify the existing legal concepts in order to deal with new legal questions that may arise as a result of these technological changes.
This, I believe, is what needs to be borne in mind when crafting or debating these ICT policies and cyber laws. A good example that always comes to my mind is the “Facebook” concept. Facebook wall is like a newspaper that you buy from vendors along the streets of Harare. Whatever is written in the newspaper is public and likewise whatever is posted on your Facebook wall becomes public and the existing rules of law governing defamation, privacy, confidentiality disclosure and transparency, respectfulness, security, diplomacy, disclaimers, copy rights and pending legal matters etc should come into play.
An email generated by an employee via company email address is just like a letter on the company letterhead and the existing laws governing employment come into play. Obviously, there are some modifications that need to be done to the existing laws for them to effectively address the new needs of our society.
That article is also available online on www.labourwatchzim.blogspot.com. In my previous published article I recommended the use of Electronic Communication Policy (ECP) or ICT policy by companies as a way of improving dispute resolutions at the workplace. It is interesting to note that the Employment Council for Electronic, Communication and Allied Industry recently came up with a CBA with very progressive provisions on use of technology.
Section 28 of the CBA (SI 88/16) provides that:
“It is an act of misconduct for an employee to disregard or breach the IT Policy and procedures including but not limited to the following:-
Sharing of passwords without authority;
Abuse of email;
Disclosing information of a confidential nature to unauthorised persons,
Accessing prohibited websites;
Spending time on non-work related internet activities.
Though there are other legal issues that may arise as a result of these policies such as constitutional right to privacy and freedom of expression, these policies are very important in business. If a business has an ICT policy in place it means incidences of abuse of computers and internet are minimised hence less risks associated with such abuses, for an example, company legal liability and loss of business/profits. In cases of abuse of computers and internet, it is easy and quicker to dispose of disciplinary matters arising, hence leaving more time for business production and ultimately bringing more profits and a stable society. If business is making profit it should not fail to pay its employees handsomely. Quick and easy resolution of disciplinary matters means less expenses in legal costs.
In the case of Elineth Dick vs. Zimbabwe Revenue Authority SC 16/15 one of the reasons why the appellant employee lost an appeal was that she had sought to argue that the IT policy from which the misconduct she was charged with emanated was not part of her contract of employment. The allegation against the appellant was that on April 22 2010, she had sent a video clip entitled “work done in the kitchen” via email. It was not in dispute that the video clip contained indecent, obscene and immoral material. It was found that the dissemination of such material was contrary to the IT policy of the respondent which formed part of her contract of employment.
The offensive material had been sent from her business computer during working hours. Both the Labour Court and the Supreme Court found on appeal that it was clear that the IT policy was part of the appellant’s contract of employment hence the appellant was properly charged in terms of that IT policy and found guilty. Clearly the use of IT policy made it easy and cheaper for the business in this case to deal with a disciplinary matter involving use or abuse of emails.
It is critical to note that caution has to be exercised by both the employees and the employers when dealing with alleged misconduct emanating from IT policies or general abuse of business computers or internet. Employers have a tendency of rushing the allegations and carrying out a hearing before proper investigations.
For instance, if the employer withdraws a computer from an employee and later on discovers, in the absence of the employee, some offensive material on the computer, it may create doubts in the minds of the court that indeed the offensive material was kept in the computer by the employee unless the nature of the material is such that it can be traced back to the employee without any doubt.
To goad discussions on the impact of the digital age on labour laws, I will pose the following questions:
1.Should it be fair for an employer to vet a prospective employee based on information gleaned from social media websites such as Facebook? Should the consent of the employee be required?
2.Should it be a misconduct for employees to discuss conditions of service on social media?
3.Should an employee be compelled by the employer to disclose his LinkedIn contacts, which he acquired or obtained in his capacity as employee? Can such compulsion ignore LinkedIn user terms and conditions? Who owns these contacts, the employer or the employer?
4.Should an employer be allowed to use as evidence of misconduct the employee’s private YouTube or Twitter or Facebook or any social media posts?
5.Should an employer be held vicariously liable for the actions of its employees on social media?
6.Should an employer company that has failed to protect its secret or confidential data be allowed to stop ex-employees to use that data in a competing business?
7.Should court processes or letters of demand be served through Facebook?
8.Are Facebook posts private or public?
Answers to the above questions depend on what the existing laws (including CBAs) or employment contracts (including ICT policies and codes of conduct) say about the relevant concepts in each case, for an example, right to privacy, interception of communication, restraints of trade and confidentiality, unfair completion, soliciting of employees, customers/clients, defamation, harassment and recruitment etc.
In conclusion, Zimbabwe in general is in the right direction insofar as moving with technology is concerned. What is, however, required is to move with speed in crafting cyber laws and ICT policies.
With technology, the laws should be quickly amended or enacted otherwise if they are delayed, technology will remind us that “justice delayed is justice denied” indeed — a lot of bad things may have taken place by the time the new law is promulgated. As such we should avoid waiting to close the stable after the horse has bolted.
Mavhondo is a labour lawyer and partner with Mhishi Legal Practice in Harare. These New Perspectives are co-ordinated by Lovemore Kadenge, president of the Zimbabwe Economics Society. E-mail: firstname.lastname@example.org and Cell: +263 772 382 852.