Like everyone else, employees are increasingly using social networks (Facebook, LinkedIn, Twitter, etc.).) to communicate, both about their personal and professional lives.
Without necessarily assessing the consequences, they disseminate information without authorization or publish pictures of their company.
Without paying particular attention to the potential audience of their comments, they sometimes express themselves vividly about the members of their company, especially their hierarchical superiors.
What are the rules? Can they be subject to disciplinary action up to and including dismissal?
Are they protected by freedom of expression or the right to respect for privacy and the consequent secrecy of correspondence?
To find your way around, SVP, Service for historical information and business decisions (6,000 customer structures), conscientiously answers a few questions on the topic.
#1 – Can employees use social media during their working hours?
The proper fulfillment of the employment contract requires that the employee dedicates himself fully to his professional activity at the time and place of work.
So he doesn’t have any no right ” consecrated » Using social networks for personal needs during his working hours.
However, reasonable, limited use that does not interfere with the employee’s proper performance of the job is necessarily permitted, and only misuse will be punishable.
The judges thus confirmed the dismissal of an employee who “ had used the company’s Internet connection for non-professional purposes for a total of approximately forty-one hours ” in a month !
#2 – Can employees freely communicate about their company on social media?
Employees are bound by a general duty of confidentiality regarding the information they hold about their company.
This obligation can, if necessary, be specified and reinforced by a contractual confidentiality clause. The Labor Code also prohibits any employee from disclosing a manufacturing secret under threat of criminal penalties.
Of course, the use of social networks does not allow the employee to evade his duties.
The “Petit Bateau” judgment of September 30, 2020 makes this clear: a collaborator, project manager, with contractual non-disclosure clause, had published the photo of the fashion show for the new collection on her private Facebook account with more than 200 “friends” of fashion professionals, who either work for their employer but did not have access to the confidential fashion show intended for sellers, or at competing companies.
The judges upheld the dismissal of the person concerned for serious misconduct.
However, and in accordance with contractual obligations, there is no general ban on commenting on your company in social networks where employees enjoy their fundamental freedom of expression, as they do elsewhere.
#3 – What are the limits of employees’ freedom of expression on social networks?
The European Convention on Human Rights, among other fundamental texts, recalls that everyone has the right to freedom of expression and that this right includes freedom of opinion and freedom to receive or impart information or ideas.
Today, social networks are undoubtedly one of the main areas for the exercise of freedom of expression.
The European Court of Human Rights (ECtHR) also recently ruled that clicking on the “Like” mention on Facebook “ as such represents a common and popular form of exercising freedom of expression on the Internet “.
But like any freedom, freedom of expression is not unlimited, especially in a professional context.
To this end, the Court of Cassation constantly recalls that “ that when the employee enjoys a freedom of expression, both inside and outside the company, which can only be justified by the task to be performed and restricted in relation to the aim pursued, he or she will not abuse this freedom by making comments that are abusive, defamatory or excessive “.
No. 4 – What elements characterize the abuse of freedom of expression?
Abuse is generally characterized when the employee disparages their company, manager, or co-workers, or when they make offensive statements or publicly make false accusations.
The jurors assess the situations in concreto, i.e. according to the special context of the company, the quality and the functions of the employee.
Publicizing the statements is often a crucial element in assessing abuse.
For example, the judges considered that for an employee ” in the context of a conflict situation and via an almost confidential website, questioning the dismissal of one of his colleagues without the offensive statements being offensive or annoying not exceeding the limits of freedom of expression.
Conversely, the employee who had made publicly outrageous and unfounded remarks questioning the honesty and loyalty of the majority shareholder and suggested to the latter ” sells his shares and leaves the club ‘, could be legally fired for abusing his freedom of expression.
Likewise, the judges considered the statements of an employee who publicly described her branch manager as ” useless and incompetent » and the directors of « oxen “.
#5 – To what extent can employees be sanctioned by their employer for their social media activities?
The employer’s disciplinary powers are exercised exclusively in the professional sphere, that is, towards employees who do not comply with the obligations arising from their employment contract or the regulations issued for the proper functioning of the company.
An employee can thus be punished or even fired if he discloses confidential information via social networks, publishes unauthorized images of the company or its members, or makes comments about his employer that go beyond the scope of freedom of expression.
On the other hand, the activity of employees in social networks, if it does not concern the company, even if it is reprehensible, falls into their personal life and, in principle, cannot be subject to disciplinary sanctions.
#6 – Can the employer invoke the elements found on social networks towards the employees?
Since 2001, the Supreme Chamber has been emphasizing that the worker has the right to respect for the privacy of his private life, including in the professional context, which specifically implies secrecy of correspondence.
The employer can therefore, except in violation of this area of fundamental freedom, gain knowledge of a conversation of a private nature and thus use it against an employee, even if it affects the life of the company and could constitute an abuse of freedom of expression (insults, slurs, false statements, etc. ).
#7 – Are employee comments on social media classified as confidential?
The problem here relates to the right of evidence and not to the content of the statements that fall under freedom of expression and its abuse.
In this regard, the jurisprudence, mainly on Facebook, shows that Social networks can be either a private or public space depending on the settings made and ultimately the number of people likely to access the content in dispute.
For example, the Court of Cassation has recognized that a conversation of a private nature includes statements that ” was posted on the account opened by an employee on the Facebook page ” and the ” had only been accessible to a few people authorized by the latter, namely a closed group of fourteen people “.
On the other hand, the Besançon Court of Appeal considered that the Facebook network “ absolutely (…) as to their purpose and organization » a public space if the account holder does not have restricted access to his « wall ».
It should be noted that the Court of Cassation recently admitted in its judgment of March 30, 2022 legality of the evidence regarding an employee via the professional network LinkedIn.
We should also note a recent development in case law that now allows for an invasion of privacy when it “ essential to the exercise of the right to evidence and strictly proportionate to the aim pursued “.
For this reason, the Court of Cassation, in the aforementioned “Petit Bateau” judgment, authorized the submission to the court by the employera photo taken from an employee’s private Facebook accountwhich in itself constitutes an invasion of privacy but is essential in order to demonstrate a breach of confidentiality by the data subject.
In this case, the judges found that the disputed publication had been communicated spontaneously to the employer and that the latter had therefore not committed any breach of evidence…
