Author: Kabelo Komana – Associate Designate
*Supervised by Gugulethu Mthalane – Director
A quick answer is that employees and employers do not have to worry about the WhatsApp privacy updates, yet. Changes to the WhatsApp Privacy Policy and Terms of Service have been postponed from 8 February 2021 to 15 May 2021, but the more immediate concern should be avoiding misuse of the popular messaging platform for workplace harassment or falling foul of company codes of conduct and social media policies.
There seems to be confusion among WhatsApp users regarding what the Privacy Policy and Terms of Service changes are and concerns surrounding the new practice. The original announcement that was shared by WhatsApp was met with backlash due to the phrasing that data would be shared with Facebook, WhatsApp’s parent company. However, users seemed to have ignored the Frequently Asked Questions (FAQs) section which stated that the update will not give WhatsApp or Facebook the ability to access messages or listen in on end-user calls, among other concerns.
What does this mean for business WhatsApp?
The new updates, according to WhatsApp, will include new options where people will be able to message a business on WhatsApp, and provide further transparency about how WhatsApp collects and uses data. As more people move to in-app shopping, such as offered on Instagram, WhatsApp aims to move in that direction, but they said that this update does not expand their ability to share data with Facebook.
WhatsApp also went on to clarify the confusion surrounding their announcement wherein, as stated above, they emphasised that their applications continue to protect users’ messages with end-to-end encryption. They stated that a user can set their messages to disappear, can download their data and that WhatsApp groups remain private.
The use of WhatsApp groups within the workplace
There has been significant growth in the use of WhatsApp groups in the workplace in recent years, as a way for colleagues to communicate with each other. WhatsApp can be a good way for colleagues to stay in touch and share ideas, particularly when they are working remotely.
With South Africa and the world at large on lockdown due to the spread of Covid-19, companies are turning to WhatsApp as a preferred method of communication because of its convenience. Over the years in South Africa, there has been an observed risk associated with WhatsApp groups in the workplace (not the updated privacy settings) when content from a work WhatsApp group is shared with others in the form of screenshots, either maliciously or to expose some form of discrimination and/or criminal activity. Other issues with work WhatsApp groups are bullying, engaging in abusive behaviour towards colleagues, sharing of offensive or inappropriate material, or material of a discriminatory nature that can lead to claims of harassment and/or discrimination.
WhatsApp has clarified that it has no intention of making group chats public or sharing them across their applications such as Facebook. The same privacy settings that were in place with regards to WhatsApp groups are still in place and employees and employers do not need to worry about group privacy settings as they remain private and these personal chats are end-to-end encrypted, meaning WhatsApp cannot see their content. However, this does not mean that employers need not review their policies and codes of good conduct to safeguard employee relations on platforms such as WhatsApp.
The risk within the workplace is not the updated WhatsApp Terms of Service and Privacy Policy but rather the abuse of WhatsApp groups by certain employees and/or employers which may lead to disputes regarding the contravention of company social media policy. For example, in April 2020, Discovery Health dismissed 10 employees for contravening the company’s social media policy and acting maliciously against the company based on messages shared in a WhatsApp group. The dismissed employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) wherein they argued that they were unfairly dismissed. What is of interest here is that the dismissed employees accused Discovery of ‘invading their privacy’ after a fellow employee who was a member of the group reported the employees and made available the contents of their discussions.
As stated above, it seems like WhatsApp users within the workplace using workplace WhatsApp groups have nothing to worry about regarding the updated WhatsApp Terms of Service and Privacy Policy but rather they need to understand their respective companies’ social media policies and their employers’ code of good conduct to avoid the risk of disciplinary action or dismissal.
Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com