Use of social networks and freedom of expression in business – What the law says » PACA economic and political bulletin

Like everyone else, employees are increasingly using social networks (Facebook, Linkedin, Twitter, etc.) to communicate, both in their personal and professional lives.

Without necessarily measuring the consequences, they disclose information or publish images of their company without authorization. Without taking any particular precautions with regard to the potential recipients of their observations, they manifest themselves, sometimes in a lively manner, on the members of their company, in particular their hierarchical superiors.

What are the rules about this? Can they be subject to disciplinary sanctions, up to and including dismissal? Are they protected by freedom of expression or by the right to respect for private life and do they have correspondence secrecy as a corollary?

To find him, SVP, historical information and decision support service for companies (6,000 customer structures), scrupulously answers some questions on the subject.

1. Can employees use social media during working hours?

The fair fulfillment of the employment contract requires the worker to dedicate himself fully, at the time and place of work, to his professional activity. Therefore, he does not have the “consecrated” right to use social media for his personal needs during his work time.

However, reasonable and limited use that does not interfere with the employee’s good performance of his or her mission is necessarily permitted and only abuse will be punishable.

The judges thus validated the dismissal of an employee who “used the company’s internet connection, for non-professional purposes, for a total duration of approximately forty-one hours” in one month!

1. Can employees communicate freely on social media about your company?

Employees are subject to a general obligation of confidentiality with regard to the information they hold about your company. This obligation may, if necessary, be clarified and reinforced by a contractual confidentiality clause. The labor code also prohibits any employee from revealing a manufacturing secret under penalty of criminal sanctions.

Obviously, the use of social networks does not allow the employee to avoid his obligations.

The “Petit Bateau” judgment of September 30, 2020 gives us an illustration of this: an employee, project manager, with a contractual confidentiality clause, had published the photograph of the new collection’s fashion show on her private Facebook account with more than 200 “friends” fashion professionals who work for their employer, but without having had access to the confidential fashion show intended for sellers, or with competing companies. The judges validated the dismissal of the interested party for serious misconduct.

However, and in compliance with contractual obligations, there is no general prohibition of expression in relation to your company on social networks where employees enjoy their fundamental freedom of expression as in other places.

1. What are the limits of employees’ freedom of expression on social media?

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 the freedom to receive or impart information or ideas.

Today, social networks are undoubtedly one of the main spaces for exercising freedom of expression. The European Court of Human Rights (ECHR) also recently ruled that clicking the “Like” mention on Facebook “constitutes, as such, a common and popular way of exercising freedom of expression online.

However, like all freedom, freedom of expression is not without limits, especially in the professional context.

To this end, the Court of Cassation constantly recalls “that if the worker enjoys, inside and outside the company, a freedom of expression to which only restrictions are restricted which are justified by the task to be performed and proportionate to the intended purpose, he cannot abuse this freedom by making insulting, defamatory or excessive comments”.

1. What are the elements that characterize the abuse of freedom of expression?

Abuse is usually characterized when the employee denigrates his company, his managers or his colleagues or when he makes offensive comments or makes false accusations publicly.

The judges assess situations in concrete, that is, according to the particular context of the company, the quality and the functions of the employee.

Publicity of observations is often a determining factor in the appreciation of abuse.

For example, the magistrates considered that the fact that an employee “questions himself, in the context of a conflict situation and through a website of an almost confidential nature, about the dismissal of one of his colleagues, without the offensive remarks being offensive or vexatious”, did not go beyond the limits of freedom of expression.

On the other hand, the official who publicly made outrageous and unfounded comments questioning the honesty and loyalty of the majority shareholder and who proposed that the latter “give up his actions and leave the club”, could be validly fired for having abused his freedom of expression.

In the same way, the judges considered the statements of an employee who had, in public, qualified her branch manager as “null and incompetent” and those responsible to by the management of “oxen”.

1. To what extent can employees be sanctioned by the employer for their social media activity?

The disciplinary power of the employer is exercised exclusively in the professional sphere, that is, against workers who do not respect the obligations arising from their employment contract or the rules enacted for the proper functioning of the company.

An employee can therefore be penalized, or even fired, for revealing confidential information through social media, posting images of the company or its members without authorization, or for making comments about their employer that go beyond the scope of freedom of expression. expression.

On the other hand, since it does not concern the company, the activity of employees on social networks, even if condemnable if necessary, falls within their personal life and cannot, in principle, be subject to disciplinary sanctions.

1. Can the employer invoke against employees the elements found on social networks?

Since 2001, the Supreme Chamber has vehemently recalled that the worker has the right, even in the professional sphere, to respect for the privacy of his private life, which implies, in particular, correspondence secrecy.

The employer cannot, therefore, except in order to violate this area of ​​fundamental freedom, become aware of and thus use against an employee a conversation of a private nature, even if it concerns the life of the company and may constitute an abuse of freedom. expression (insults, defamation, false statements, etc.).

1. Are comments made by employees on social networks covered by the confidentiality of correspondence?

The problem here concerns the right to proof and not the content of the observations that fall under freedom of expression and its abuses.

In this regard, it follows from case law, essentially with regard to Facebook, that social networks can constitute a private or public space depending on the settings implemented and, ultimately, the number of people who will be able to access the content in dispute.

For example, the Court of Cassation admitted that a conversation of a private nature included comments that “had been transmitted on the account opened by an employee on the Facebook website” and that “had only been accessible to persons approved by the latter and few in number, that is, a closed group composed of fourteen people”.

On the other hand, the Court of Appeal of Besançon considered that the Facebook network was “necessarily (…) with regard to its purpose and organization” a public space – restrictions on access to its “wall”.

It should be noted that very recently, the Court of Cassation in its judgment of 30 March 2022, admitted the legality of evidence relating to an employee obtained through the professional network Linkedin.

It is also worth mentioning a recent evolution of jurisprudence that now allows the invasion of privacy if it is “essential to the exercise of the right to proof and strictly proportional to the objective pursued”.

It is for this reason that the Court of Cassation authorized, in the aforementioned “Petit Bateau” judgment, the production in court by the employer of a photograph taken from a worker’s private Facebook account, constituting as such an invasion of privacy, but essential to establish breach by the interested party of its confidentiality obligation.

In this case, the judges observed that the contested publication had been spontaneously communicated to the employer and that, therefore, he had not committed any disloyalty in the administration of the evidence.

About please: Founded in 1935, SVP is a company that offers an information and decision support service for managers, elected representatives of private or public structures.

This unique service (by telephone and/or internet) allows us to respond to the needs of professionals and, thus, obtain reliable information immediately (85% of the answers are provided immediately). With more than 200 specialists, SVP knows how to answer all questions about human resources, taxation, technical regulations, contractual relations, etc.

Experts SVP trained professionals, higher education and company employees.

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