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Social Media and Employment: What Legal Framework?

Social networks (Facebook, LinkedIn, Twitter, Xing, etc.) provide an easy way to get news and share information, to express opinions and offer room for free speech. Considering this, and the fact that Internet (almost) never forgets, social networks and Internet may provide a lot of relevant but not always reliable information about job applicants. Is it legal for employers to access such information? Is it possible to use it against the employee if the information posted is misleading? In the course of employment, the use of social networks may give rise to difficulties, for example if an employee spends too much of his working time on social networks or an employee posts gossip or denigrating comments or discloses confidential information on the web. What can an employer do in such cases? This article will answer some questions arising from this complex topic.

Can an employer access information posted on social media by job candidates?

It is now common to google a candidate to gather information about his background and his personality. This may, however, be risky as the information posted on the Internet may not always be accurate or may come from the candidate himself. Besides, if the information becomes part of an automatic processing or part of a filing system, the Luxembourg law dated 2 August 2002 on the protection of individuals with regard to the processing of personal data, as amended, is likely to apply.

This means that the candidate should be informed of the processing of his personal data and be informed about his rights, and especially the right to optout. This also means that the data collected can only be used for the purposes of the identification and/or assessment of the professional skills of the candidate for a specific position.

What if a candidate publishes false information about his/her career on social media?

There is no precise Luxembourg case law on that issue. By analogy with the case law applying to misleading CVs and taking into account the principles governing the protection of privacy, false information posted on social media should only lead to the dismissal of the employee hired in very particular cases. The employee should have been notified that the employer has referred to the information published on social media or the Internet in general. The information collected from such a source should relate directly to the employment of the candidate. And finally, it must be shown that the employee is not able to perform the tasks for which he was hired, contrary to the information he made available on social media.

Can an employee be dismissed or otherwise disciplined by the employer for the information posted on social media?

Freedom of speech on social media is not absolute and may be viewed as abusive and as a breach of the employees’ duty of loyalty.

Defamation or insult by an employee of their job, employer, company or colleagues or disclosing confidential information may lead, under certain circumstances, to their dismissal.

The case law on this issue has evolved during the past few years, taking into account the growth of social media and its impact.

Two key elements must be taken into account when determining if an employee can be dismissed on the basis of information posted on social media.

The information published must be of a public nature.

The private or public nature of the information is mainly a matter of fact, depending on the confidentiality set tings put in place by the employee.

Where the access to a profile user is strictly limited to close friends, and provided that the number of friends is very limited, it should be seen as private (see French Higher Court, 10 April 2013) and a publication on this profile cannot justify a dismissal. The principle of the secrecy of correspondence prevails.

To the contrary, when the employee’s profile is accessible to his friends but also his friend’s friends, the profile is usually regarded as of a public nature and may be used by the employer against the employee (Reims Court of Appeal 9 June 2010, n°09/3209).

The information posted must impact the working relationship.

In other words, the content of the information must have a link to the employee’s function or with the employer. As an example, expressing political opinion has in principle no link to the employee’s function and cannot justify disciplinary sanctions. On the other hand, posting on Facebook enjoying good times shopping around while being on sick leave may give rise to disciplinary sanctions and, depending on the circumstances, to a dismissal.

What can an employer do if a former employee posts denigrating comments about the company on the Internet?

Depending on the circumstances, the employer may launch a civil or a criminal lawsuit for defamation or insults on the basis of the Luxembourg law of 8 June 2004 on freedom of expression in media, as modified. The time limits in this context are, however, very short and the employer must be very careful to meet them. The complaint must be filed within a three month period following the date of the litigious publication. Such an action may lead to the withdrawal of the challenged post but also to damages or criminal sanctions.

What can an employer do to prevent an employee from using social media in a way which could damage the reputation of the company?

It is highly advisable for employers to have an Internet policy or a computing charter laying down the rules of use by employees of the communication devices put at their disposal by the employer. Such a policy will usefully remind the employees of their duty of confidentiality, obligation and discretion. It will also, inter alia, prohibit them from using professional email addresses to post personal comments on the Internet.

All names included herein as examples are for illustrative purposes only. This article only intends to provide with information on recent or forthcoming legal developments on a general basis and does not constitute a legal advice.

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