Recently an employee of a ‘Blokker’shop posted his views on his employer on facebook. His boss was not prepared to pay an advance on his wages, and that was not to the employees liking, as the following shows. Apart from some abuse on the boss in question and some not so carefully veiled death threats, he wrote: “Blokker is n hoerebedrijf”. (This (roughly) translates as: Blokker is knocking shop.) The moment Blokker heard of this, it sought dissolution of the employment contract. Blokker stated that the employee had been reprimanded about similar unacceptable utterances on the internet before. Blokker saw no basis for further fruitful cooperation. (Which wasn’t an outlandish point of view, considering the words he used about his boss. ‘Loser’ is a very short, and perhaps too polite, translation of them.)
One of the lines of defence the employee took in court, was that his facebook page belonged to his private sphere. The employer has no right to interfere with, and has no business with, private communications by an employee to his friends. He might have said those things to his friends in a pub or at a birthday party at home too, and the employer wouldn’t have had anything to say about that either.
In his ruling the Kantonrechter Arnhem (19 march 2012, LJN BV 9483) took an altogether different view. Facebook is not so private. Messages can be ‘retweeted’ (sic), according to the ruling and are therefore likely to enter the public domain. The kantonrechter reasons that on facebook a ‘friend’ should be placed between inverted comma’s – and the ruling does so -: on facebook the word ‘friend’ is a relative value . (Proof of which might be that Blokker heard of the abusive messages because one of the employee’s ‘friends’ showed it to them.) A few weeks after the Blokker case, a dismissal of another employee who made racist remarks about his colleagues on facebook was upheld by the court (Kantonrechter Arnhem 11 April 2012, LJN BW 2006).
From these cases one can draw the conclusion that on the internet, even on pages that are accessible to a selected audience, privacy is of a relative value. Employees need to be aware that their remarks might reach a wider audience than they intended. If and when that message is offensive to the employer, and the employee should have been aware of that too, dismissal will follow.
One might take issue with this loss of privacy and infringement of freedom of expression. On the other hand, it is not unreasonable for an employer to expect – to some extent – loyalty and decency from his employees, even after hours at home. Especially when using social media, where the distinction between private and public is hazy and where messages are bound to reach a wider audience than intended. Furthermore, messages, once put on the internet are quasi inerasable and roam about in cyberspace forever.
As always, there’s a balance to be struck. Employers can be expected to have a ‘thick skin’. Not every unwelcome comment, especially when it’s made by an employee who is emotional for understandable reasons, should be dealt with by dismissal or other sanctions. A total ban on making work related comments, as the mayor of Noordwijk was trying to impose on police officers recently, is out of the question too. The good news for employees is that the fuzzy distinction between public and private sphere works both ways. In its case law the ECHR has established that an employer needs to tolerate that employees, within reason, entertain private communications and contacts during office hours at their place of work.
Employees should be aware, however, that things they wouldn’t say in front of their boss and colleagues are sometimes best left unsaid on the internet, too. In short: think, before you post.