The employer's use of information available on social networks is fueling increasing litigation. Whether it concerns information about the employee or comments the employee posted online, the question arises as to whether the employer who is aware of it, in one way or another, is able to use it in anyway.
It’s important to evaluate how the data is accessed.
Case law takes into account the settings of the social media, whether it was left open or closed, and whether the information was destined for friends, friends of friends, or the general public.
Originally, the Court of Cassation, on April 10, 2013, considered that a closed parameter setting, reserving access to the site only to persons approved by the interested party, excludes the qualification of public insult. In a similar sense, the Rouen Court of Appeal, invalidated the dismissal of two employees who exchanged abusive remarks about their employer with co-workers while it was not established that the setting up of Facebook accounts gave the comments a public character.
On the other hand, when the remarks are accessible on a public or semi-public wall, the judges are quick to consider that the employer can claim their character excessive, disparaging or insulting, to justify a dismissal.
Some jurisdictions also believe that, in general, social media should be considered as a public space.
The Social chamber of the Court of Cassation, that deals on labour and employment matters, has for the moment only delivered one verdict and it’s not very clear cut.
On December 20, 2017, the court held that an employer cannot access, without disproportionately and unfairly affecting an employee's private life, information extracted from her Facebook account obtained from the mobile phone of another employee, when this information was restricted to authorized persons.
The court speaks of disloyalty but this concerns the method in which the evidence was obtained: through maneuvers and someone else’s phone. It seems to distinguish this reprehensible behavior from the actual invasion of privacy that is performed when the content of information is related to the employee’s personal life.
The lesson here is that employees need to be careful of the settings of their social network profiles and pay attention to whom they share their content with!