The Image Rights Over Social Media Profile: Whose Identity is it Anyway?

Abstract

We live in an online identity age where employees use their creativity to make their profiles distinctive to attract clients and collaborators. Social media profiles give employees, businesses, and organisations commercial advantages in their respective markets. However, social media profiles can cause problems when employees leave organisations. It is in the interests of the employer to maintain relations with clients that are connected to an employee’s profile. However, given that a social media profile is made up of personality attributes, the employee has a legal and social interest in the commercial value of their identity. This article critically assesses whether image rights can protect the social media profile as an attribute of a person’s identity when the profile has been used in the course of employment. The article begins with a legal analysis that raises questions about the nature and value of a social media profile as an aspect of the right to identity under the South African law of delict. The paper concludes with recommendations on how image rights can protect the employees’ interests over a social media profile even after their term of employment as their identity is inseparable from their person.