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The use of social media is often associated with communication for private purposes. However, the various social media platforms are open to different types of communications, both private and business. In this contribution we take a closer look at the boundary between business communications and personal expression in social media, its control by the employer, and the possible consequences for the employment relationship.
Privacy and Control
Utterances and communications in the social media are often directly at the interface between business and personal. This has resulted in multiple clashes between the employer's interests and the employee's rights. The employer can deal with sensitive information by imposing a duty of confidentiality on its employees. In doing so the employer must acknowledge the employee's fundamental rights. The right to privacy will play a key role when exercising control, and the freedom of expression where there is any sanction. If the employer wishes to infringe on an employee’s right to privacy, it must have a justified interest and the employer will have to be able to base its actions on rules that have been set in advance, such as a code of conduct or a protocol directed at the use of the Internet by employees, these also need to be corresponded.
Personal versus business communications
Disputes brought to court particularly relate to damage to the employer's image and violation of the non-solicitation clause. Utterances or photos posted by employees can seriously embarrass the employer and cause the business harm. Suspension or dismissal can be considered in such a case.
Where there is a non-solicitation clause the employer can prohibit the employee for a set term after the end of employment, subject to penalty, from making or remaining in contact with any of the employer's business relations. The court will judge in such cases whether the alleged violation of the non-solicitation clause does justify the imposition of a penalty. The judgement of these cases turns on the nature of the conduct and the environment - the medium -in which the utterance was made.
Linkedin
LinkedIn is pre-eminently a business network where making a new connection is publicly visible. This makes it relatively easy to establish a violation of any applicable non-solicitation clause. Circumstances, such as who initiated the invitation or when the invitation was sent, could also influence the judgement of a dispute.
Twitter
The Amsterdam Subdistrict Court found all information on Twitter is public so that following competitors for that reason cannot be qualified as unlawful. The Amsterdam Court of Appeal recently ruled on the violation of a non-solicitation clause pursuant to a public announcement on Twitter when a recruiter had contact with a candidate she had known from her previous employer. The defence that the candidate responded to an open vacancy could not avail.
Personal Facebook profile
A Dutch Court ruled that social media such as Facebook, Twitter, and WhatsApp must be regarded in principle as being private and personal and those utterances on these platforms therefore in principle fall under the freedom of expression, unless their business character is clearly and unambiguously evident to everyone.
Others have assumed that the nature of the utterance, and not its medium, leads. The platform on which these utterances are made can be a relevant factor in the judgement. Utterances in one's own profile on Facebook could well be of a business nature whereby the employer can have the authority to impose sanctions. A recent ruling demonstrated that when there is gross insult of the employer on an employee’s personal Facebook profile, the employee's statements no longer has anything to do with the freedom of expression. An employer's application to terminate the employment agreement may be granted without need to make any compensation.
Cross-Border
A similar decision was handed down in England concerning Facebook and the fact that utterances on this medium can be deemed only relatively to be private and personal. Utterances can easily be shared without their sender having any control over this. The English court rejected the employee's reliance on his right to privacy since the employee no longer had any control over the distribution of his message and thereby could no longer safeguard their privacy. As for the freedom of expression, the court ruled that the limitation of that right was justified and proportionate to the employer's interest to protect its business interest. Furthermore, the court found that the nature of these utterances did not qualify for protection under the freedom of expression.
Likewise, a US court ruled on the dismissal of an employee who had posted a compromising photo with text on Facebook. The employee's privacy settings had allowed "friends of friends" to see, and share, the photo. This made it possible for the photo to have reached more than one thousand people. The dismissal of the employee was upheld.
Balancing interests
Many of us, employers and employees, have profiled ourselves on one or more social media platforms. It is clear from case law that it is important for employers to be aware that social media are being used during business hours, and to acknowledge and guide their use. Damage is sooner done than cured. When controlling and authorising the use of social media, the employer will have to balance his interest to protect its market position with the employee's interest in his right to privacy and freedom of expression. It seems that case law sets stricter requirements for employees with respect to the way in which they express themselves and the possibility of (rapid) distribution of these utterances.
For more information on this topic, please contact Eugenie Nunes or Annemarie Roukema of Dutch law firm Boekel De Nerée on [email protected] or [email protected]
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