French Employees Should Check Their Privacy Settings Before Posting On Social Media Platforms

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...

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