With the growing popularity of social networks, an employee’s momentary carelessness may result in irrevocable harm to the reputation of his or her employer: all it takes is one defamatory statement on Facebook. How does the existing case law in the Czech Republic address this issue and what are the consequences of such behaviour?
Years ago, the worst employees could do was to criticise their immediate supervisor or employer in the safety of their own home or a favourite pub. The most embittered ones could go as far as to give an interview to the media. An employee thus always had a fairly clear idea of his or her audience: at the pub, statements were only heard by the few who were present, while a media report was public by definition and an employee had to think properly about the message he or she was sending to the world. However, the issue with social networks lies in the fact that boundaries between what is public and what is private are not always well defined.
A fictional example
To illustrate the issue, let us imagine the following fictional scenario.
At the end of his shift, an employee finds out that the promotion he was so sure he would get had been given to his hard-working colleague instead. On the way home, the employee uses his phone to log into Facebook and writes an obscene and insulting status on his profile page about his employer. A friend of his does not believe him and publishes this on his own profile page: ‘What is your experience with Company, Inc.?’ The still-infuriated employee writes a comment insulting his employer again and threatening to ‘tell all the customers what they say about them behind their backs.’
Let’s say that this employee has around 250 Facebook friends. The employee most likely has no knowledge of their relationship to his employer, nor can he foresee how far the criticism will spread from his Facebook page. In addition, by commenting on someone else’s status update, the employee has no control over their privacy settings. His comment may be visible only to friends of the person who wrote the initial message, however, the employee most likely did not investigate who these friends were before he posted a comment. The initial message may also be entirely public which can be verified but few people actually do that.
Problems to solve
In this context, there are four key issues to address:
- Is this a public or a private statement - what is the nature of Facebook?
- What is legitimate criticism?
- What does it mean to speak in an obscene manner?
- Would the above statements by the employee be considered as a sufficient reason for immediate termination of his employment by the employer?
Public or private: the particular nature of Facebook
The Constitutional Court of the Czech Republic has already addressed the special nature of social networks in its decision, no. III. ÚS 3844/13 dated 30 October 2014. It did not agree with the reasoning of the lower courts, which regarded Facebook as entirely public. The Constitutional Court has divided the user’s profile and thus his communication into two parts:
- public: open to all other users of Facebook or even all users of the Internet;
- private: limited to an exclusive group of users, usually friends of the user, or only to certain circles (specially selected groups of friends).
The Court distinguished between users choosing to make their profile public or post on a public group and users who set privacy settings to restrict access to a selected circle of friends, or use Messenger for greater privacy.
The duty of loyalty and the issue of (il)legitimate criticism
Employees frequently argue that they have the right to freedom of expression and can thus say whatever they want and criticise whomever they wish at any time. However, it is important to realise that freedom of expression as stipulated by Article 17 of the Charter of Fundamental Rights and Freedoms of the Czech Republic is not without limits; in this case it is limited by the obligation of an employee to maintain a certain level of loyalty to his or her employer. Section 301(d) of the Czech Labour Code states that employees are ‘obliged not to act in violation of justified interests of their employer.’
This loyalty obligation is not restricted to an employee’s working hours or workplace. The obligation applies 24 hours a day, seven days a week, anywhere.
Naturally, threatening an employer is a model example of a breach of the loyalty obligation. The Supreme Court of the Czech Republic has addressed this issue expressly in its decision, no. 21 Cdo 1267/2018 of 14 August 2018. According to the Supreme Court, an employee has a full right to threaten his or her employer with legal action regarding the invalidity of his or her notice of dismissal. An employee cannot be punished for stating an intention to exercise his or her legal rights. However, in the case in question, the Supreme Court held that since the employee had also threatened that he would make sure that the employer would no longer receive subsidies, this constituted a violation of the loyalty obligation. The subsequent immediate termination of his employment by the employer was therefore valid. This (stricter) category would apply also to our imaginary employee’s threat to sabotage his employer’s business.
Nevertheless, the extent of the loyalty obligation is obviously not only restricted in this way. Based on the decision of the Supreme Court of Czech Republic, no. 21 Cdo 4428/2007 of 13 November 2018, an employee is expressly obliged:
‘with respect to the employment relationship not to cause harm to his or her employer by his behaviour as a whole, be it harm of a financial or moral nature’.
It is not necessary to breach a legal obligation to fall foul of this. In this decision, an employee gave an interview to a local magazine in which she criticised the organisation of night tours by her employer. This employer gave her notice of dismissal and the employee reacted by suing for unfair dismissal. The Supreme Court held that the notice of dismissal was valid as the employee acted in violation of the justified interests of her employer whose reputation was tarnished in the media as a result of publication of her illegitimate criticism.
This brings us to another issue – what constitutes legitimate criticism and, by contrast, what kind of criticism is not protected by law?
The criteria for legitimate criticism are as follows:
- It must be founded upon true facts, i.e. it must be factual and specific.
- It must be appropriate in terms of content, form and place, that is, it shall not exceed what is necessary to achieve the intended (and legally recognised) goal.
The first criterion has been recently defined in a decision of the Supreme Court of the Czech Republic, no. 21 Cdo 1043/2016 dated 20 March 2017. In this case, a journalist from the TV Barrandov channel wrote an article online in which he compared the internal conditions in the company to a totalitarian regime. He stated that his superiors demanded a plan of what would be broadcast in advance so as to decide what would actually air. However, there was insufficient evidence to prove the employee’s claim of censorship and the Supreme Court held the journalist’s criticism was illegitimate.
The Supreme Court has also articulated its opinion on the second criterion, the proportionality of criticism with regards to its goal and, in particular, to the circumstances within which it was uttered. Obscene language is a notable example. Pejorative or vulgar expressions that deviate from the limits of generally recognised rules of decency, will usually only worsen the situation of an employee in a judicial dispute and should be avoided. However, this recommendation does not apply unconditionally. According to the decision of the Constitutional Court of the Czech Republic, No. II. ÚS 180/16 dated 17 February 2016, it is always:
‘necessary to assess it in the light of the situation as whole which should include what was actually said, the context within which it was uttered as well as the level of severity of possible harm that may come as a result to the employer, the motive of the employee and the nature and severity of the imposed sanction.’
Case law indicates that context and situation can include the place and company in which the obscenity was used, the nature and duration of the relationship between the employer and employee and the socio-economic status of the employee.
Were there sufficient grounds to terminate employment immediately?
An employee should keep in mind all of the limits set by the above-mentioned case law when publishing a post on a social network.
As far as our fictional case is concerned, the employee has probably violated his loyalty obligation towards his employer and his employment may be terminated immediately as a result. The employer’s case would be strengthened by the high number of readers of the post and comment, the ability of the statements to cause the employer harm, the excessive or vulgar nature of the criticism, the inability of the employee to prove that it is based on fact as well as the threat that concludes his statement.
In other words, when criticising an employer, employees should not:
- say things that are untrue or not based on true facts;
- be unspecific;
- use excessive or obscene language;
- make statements in public (and thus intend to damage the good reputation of the employer).
In conclusion, if an employee feels the need to insult his or her employer, he or she is advised to do it in private, face to face. Social networks are not a good place for unleashing emotions and frustrations publicly.