It may seem obvious to a lay person that employees should
refrain from insulting their companies on social media due to the
threat of termination for cause; however, there are contradictory
legal principles that apply to the use of social media by employees
which can be used both for and against employees (i.e. freedom of
speech, right to privacy, data protection laws, an employer's
right to take disciplinary action, public insult offense, etc.) As
a consequence, there is uncertainty as to whether an employer can
use its employees' postings made on social media websites to
As illustrated by the following decisions, French case law
remains divided on the issue of an employer's right to sanction
employees for social media postings. In two recent decisions,
French courts ruled that employees posting insulting comments about
their employers on a social media website could be terminated for
fault and also fined for the offense of public insult. One decision
was rendered by a Criminal Court and the other by a Labor Court of
Appeals. A third decision, however, issued a different ruling under
In the first decision, a union member posted a message on the
Facebook wall of the union of his company, where he insulted the
company and his supervisor. The employer not only decided to
suspend his contract but also to file a complaint against him for
public insult which is an offense. The Criminal Court of Paris
ruled in a decision dated January 17, 2012 that all the elements of
the infraction were met and the employee was fined €500,
as well as a symbolic €1 of damages to the company and his
supervisor. In justifying its decision, the Criminal Court
explained that the comments posted exceeded the limits of
acceptable criticism, including when they are expressed in a union
In the second decision, a company dismissed an employee for
posting insulting comments about her company on the social
networking "wall" of a former employee's who had been
terminated for fault. The Court of Appeals of Besançon ruled
in a decision dated November 15, 2011 that the employer was
entitled to use the comments posted by its employee as a basis for
dismissal. The court reasoned that on the one hand Facebook's
purpose was to be a social network and on the other hand, the
employee had not checked prior to posting if the "wall"
of her friend was set to be displayed only to her friends. As a
consequence, the comments posted on the social media site could not
be considered private conversations or correspondences.
On the same day, however, the Court of Appeal of Rouen held that
the dismissal for fault of an employee who posted negative comments
about his superiors was without cause because it was not evidenced
that the posts could be read by people other than the
"friends" of the employee. In other words, the Court
ruled that given the privacy settings of the Facebook
employee's account, the content of her "wall" had to
be considered private.
In light of these decisions, French employees have some
incentive to check their privacy settings prior to posting on
social media platforms. Where privacy settings are not set high
enough, employers seem to be entitled to consider employees'
posts as not confidential and therefore use them as evidence to
justify termination. In any event, given the legal uncertainty
which still exists regarding the use of social media by employees,
it is necessary for social media users to keep in mind that there
is no certainty of privacy on the Web.
For those of you who are watching the same legal issues in the
United States, the National Labor Relations Board has been
grappling with the same issues but under a different body of
law. You can find out more here.
The fourth and final part of our mini-series on the draft ICO guidance on Consent, published on 2 March 2017, focuses on the practical impact the GDPR (General Data Protection Regulation) will have on how your organisation records and manages consent.
In light of the much anticipated ICO draft GDPR (the General Data Protection Regulation) Consent Guidance being published yesterday, 2 March 2017, we will be running a mini-series on the guidelines under consultation and the impact the GDPR will have on the much vexed position of consent and the impact on your business.
To coincide with Data Privacy Day, we have prepared a roundup of five recent announcements and developments in the world of privacy and data protection.
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