It is for this reason that companies are increasingly making use of the social media policy, an important tool for raising awareness and avoiding the improper use of social accounts. In fact, the Italian courts have repeatedly confirmed the legitimacy of disciplinary dismissal of employees who have published posts about the employer that went beyond mere criticism and were unnecessarily offensive and defamatory.

This article deals with the social media policy and the limits on employees’ right to criticise, with particular attention to what can and cannot be published on social profiles, even personal ones.

A Social Media Policy is a code of conduct that regulates the relationship on the internet, and in particular on social media, between an organisation and parties who interact with it.

It is generally a document addressed:

• to employees who use and administer company accounts, containing instructions on how to use the pages/profiles created by the organisation or company;
• to staff regarding the use of personal social mediaand the disciplinary consequences of behaviour that may damage the reputation of the organisation or spread confidential information.

Employees in charge of managing the employer’s social profiles must, for example, ensure that the contents shared provide verified information and are in line with the communication strategy and values ​​of the employer. It is also essential to avoid disclosing confidential information and to always respect and protect the privacy of other employees.

Even when employees publish on personal social profiles, their right to criticize must be balanced against the duty to behave respectfully toward the employer. They must avoid disclosure of information that is confidential or not yet made public, or transmission and dissemination of offensive messages or public statements about the employer that go beyond good-faith criticism.

The issue of offensive messages or statements against the employer on social media deserves special attention, as it involves walking a fine line between the exercise of the employee’s right of criticism and the damage to the employer’s reputation.

The right to criticize finds its foundation in the Italian Constitution’s guarantee of free speech. The freedom to express one’s thoughts within the employment relationship is further guaranteed by employment legislation, which gives all workers the right to freely express their thoughts in the workplace, and therefore to take critical positions towards the employer.

This right must, however, be exercised in compliance with other constitutional values, for example the honour and reputation of the recipient of the criticism. Another limit to the right of criticism is the employee’s obligation of loyalty enshrined in legislation. Case law further broadens this obligation, requiring that it be read in light of general principles of good faith.

The criteria for guaranteeing a fair balance of these rights have been developed by jurisprudence in the field of criticism and journalistic reporting, and then also applied to the labour law context. These are the principles of:

• substantive restraint(i.e. the facts on which the criticism is based must correspond to the truth); and
• formal restraint(i.e. the expression of criticism must take place in a moderate, measured, and respectful manner).

Violation of these limits can render the worker’s conduct improper and can therefore justify disciplinary dismissal. As the courts have stated, the boundaries of the exercise of the right of criticism are exceeded when the employer or its representatives are accused of ‘reprehensible conduct’ (including a crime), or when ‘openly dishonorable’ qualities are attributed to the employer (even if true) using ‘vulgar, defamatory references that arouse contempt and ridicule.’ For example, the Supreme Court recently upheld the dismissal of a worker who falsely reported the employer for misappropriation of severance pay.

The limits to the exercise of the right to criticize are even more stringent if the criticism comes from an employee in a top position. Consider the case of a manager who was fired for having publicly expressed his dissent ‘excessively and colourfully’ with respect to efficiency recommendations by the company’s board of directors. The court upheld the dismissal, holding that such harsh tones coming from a manager are likely to discredit the board among the other employees, fueling a contentious and non-cooperative climate, and this went beyond the legitimate exercise of the right of criticism.

The rules developed by case law regarding limits to the employee’s right to criticize are even more strictly applied when the criticism is expressed on social networks where every photo and every opinion published has the potential for exponential diffusion. As often stated by the courts, while the right to express dissent is a constitutionally guaranteed right, the language used must not be ‘injurious’, ‘even more so if the expression of certain points of view occurs through a means potentially capable of reaching an indeterminate or in any case quantitatively appreciable number of people.’

The publication of an offensive message on a social network towards easily identifiable people can in fact constitute aggravated defamation, as it is committed ‘through the press’ within the meaning of the Criminal Code, precisely because of the suitability of this medium to circulate the message among an indeterminate group of people.

In such cases it is irrelevant whether the profile is set by the user as private or public, as social networks are considered inherently public places. What is said or shared in a private profile can still be disseminated by each of the user’s contacts (e.g. by using the ‘share’ function, circulating the post via a screenshot, or directly showing the screen to third parties), making the number of recipients of the post potentially unlimited.

It is therefore permissible to dismiss for just cause an employee who disparages their employer on a social network in defamatory and offensive ways.

These principles were recently reaffirmed by the Supreme Court, which upheld the dismissal for cause of a union representative who published defamatory comments on Facebook that were devoid of any informative purpose and aimed solely at damaging the reputation of the employer. The court held that this behaviour was seriously detrimental to the employer’s public image and the dignity of its managers, and that it went beyond the limits of the right to criticize. The court held that the comments amounted to aggravated defamation, given the general visibility and diffusion of messages posted on social media.

Social media is a great opportunity for businesses, but it can also open the door to serious reputational damage. A carefully crafted social media policy will strike a balance between employees’ rights to raise criticisms on their personal social media accounts and the employer’s privacy and reputational interests.