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 sanction them.
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 similar facts.
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 context.
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 (http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567).