This article has been written in cooperation with Stibbe Amsterdam: Judica Krikke and Friederike van der Jagt.
In France, judges consider that the answer to this question depends on the parameters of the employee’s profile on Facebook.
In a decision of April 10, 2013, the French Supreme Court ruled that when insulting comments are shared on Facebook and MSN but only to a limited number of persons, the comments cannot be considered as a public insult, which is a criminal offense.
In that case, an employer had summoned her former employee in Court to the payment of damages for having published insulting comments of her boss on different social media.
However, that employee had set out her profile’s parameters so that a very limited number of her friends can access those comments. The French judges therefore ruled that the insulting post was shared only with a community having the same interests as the employee and therefore could not be qualified as a massive diffusion, given that the friends of the employee’s friends did not have access to the insulting comments.
As a consequence, the rough comments could not be qualified of insulting, which is punished by a fine of €12,000.
However, even if employees properly parameter their social network’s profiles so that their posts remain diffused to their own community, they can still be sued for private insults. But consequences are not really serious for employees given that in such a case, the offense is only punished by a fine of €38…
In the Netherlands, two cases show that the situation under Dutch law is interpreted differently.
In March 2012, the Arnhem District Court considered negative comments of an employee concerning his boss on Facebook cause for rescission of the employment contract. The employee shared these views “only” with his Facebook friends, which included a colleague. This colleague took it upon him/herself to share these comments with their employer. The employer confronted the employee with his statement and explicitly informed the employee that future negative remarks would lead to the termination of the employment contract. The employee turned out to be quite stubborn: within two weeks, the employee posted another negative remark about his employer on Facebook.
Thereupon the employer asked the judge for rescission of the employment contract. In granting this request, the judge took into consideration that the private nature and the concept of ‘’friends’’ on Facebook is rather relative: the colleague did not turn out to be such a good friend after all. Furthermore, the judge claimed that messages on Facebook can easily be ‘’retweeted’’, mixing up the different forms of social media. However, the point which he wanted to make was obvious: a message can start as a private message but can easily become public.
Although this case shows that it is rather easily assumed that a comment on a social media can be considered to be made publicly, this does not always give cause for the termination of the contract of employment. For example, one month after the aforementioned verdict, the same District Court ruled that posting a negative and discriminating comment on Facebook concerning a colleague is not enough reason for a dismissal for urgent cause. Employers should take the severe consequences of such dismissal for the employee into account. Therefore, in this case, it was stated that an employee should be given at least one warning regarding improper conduct on social media. If the employee then reoffends, the employer can argue that it was clear to the employee that such behavior would not be tolerated. Thereafter it can be judged whether the infringement of, for example, a confidentiality clause, a non-compete clause, a business relations clause or a breach of the good employee standards, is reason enough for rescission of the contract of employment. It remains to be seen whether this approach will be followed in the future cases.