French employees should check their privacy settings before posting on social media platforms

by Proskauer - Privacy & Data Security
Contact

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.  You can find out more here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - Privacy & Data Security | Attorney Advertising

Written by:

Proskauer - Privacy & Data Security
Contact
more
less

Proskauer - Privacy & Data Security on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!