Member Article

Although like in most EU countries, there is no specific regulation in France on social media, judges have recently answered very clearly to this question: it depends on the privacy settings made by the employee!

French judges make a clear distinction between (i) social media postings that remain private (i.e. not displayed beyond the “circle of friends”) because the employee has taken the necessary steps to optimize his privacy setting and (ii) postings that are accessible to a large public.

In its first “Facebook” ruling in November, 2010, the Boulogne-Billancourt labor Court[1] held that the termination of three employees who had disparaged their managers on their private Facebook pages from their home computers was grounded. These employees had even created a “club des néfastes” (club of the evildoers) on Facebook.

The fact that their discussion took place on their “wall” has been a conclusive factor in the decision of the Labor Court since a “wall” is a public writing space where “friends of friends” may see what has been written on it. The court found that the employer had not breached the employees’ right to privacy as the comments had been posted on an “open social network.”

This decision has been upheld by the Versailles Court of Appeals [2] and has been followed by several other court decisions since then[3].

Interesting enough, comments posted on a non-protected Facebook page can also be used against unionized employees. In a decision dated January 17, 2012[4], a union member had posted a message on the Facebook wall of the union in place in his company where he insulted the company and his boss after a  colleague committed suicide.  The employer filed a complaint against him for public insult, which is a criminal offence under French law. The Criminal court confirmed that the comments posted exceeded the limits of freedom of speech even though they were made in a union context.

This being said, French judges continue to protect private correspondences even though they are posted on a social media network. In January 2012, the Rouen Court of Appeal held that the dismissal for fault of an employee who had posted negative comments on his superiors was without cause because there was not evidence that the posts could have been read by people other than the employee’s ”friends". In other words, the Court ruled that given the privacy settings of the employee’s Facebook account, the content of the “wall” should be regarded as private.

In the same vein, in a ruling of September 24, 2012, the Labor Court of Longwy[5] ruled that the dismissal of an employee was unfair given that:

(i)     the controversial comments were made through communication tools that did not belong to the employer,

(ii)    during a holiday paid period, i.e. not during the working time, 

(iii)    the alleged defamatory purpose of the comments was ambiguous,

(iv)    the employee had set privacy lock when posting comments posted on her wall and could not therefore be held liable for the posting of her comments on other walls.

In short, where privacy settings are not high enough,  employers may regard employees’ posts as not confidential and use them as evidence to justify termination.

This article is intended to provide a general summary only and is not intended to provide comprehensive nor legal advice. If you require specific legal advice in relation to a specific situation, please contact Déborah David at JeantetAssociés.

Déborah David

Tel : (33) 01.45.05.80.08 

Fax : (33) 01.47.04.20.41 

email : [email protected] 

fr.linkedin.com/in/deborahdavid1 

www.jeantet.fr

[1] Labor Court of Boulogne-Billancourt, November 19, 2010, n° 09-00316

[2] Court of Appeals of  Versailles, February 22, 2012, n° 10-05450

[3] Court of Appeals of Besançon, November 15, 2011 n° 10-02442 ; Court of Appeals of  Reims, October 24, 2012, n°11-01249

[4] Criminal Court of Paris, 17th room, Press, January 17, 2012, n°1034008388

[5] Labor Court of Longwy, September 24, 2012, F 12/00077, Mrs. X/SAS Chausséa