Leiden Law Blog

Think before you post

Posted on by Barend Barentsen in Public Law , 2
Think before you post

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.   

2 Comments

Barend Barentsen
Posted by Barend Barentsen on November 17, 2012 at 21:44

Thanks for the comment, which adds the nuance to my blog which is also lacking from the case law up to this point. The private sphere is not closed off from outside influences completely, but indeed a distinction could and should be made between, say, private, more private, very private and intimate. The possibilities for employers to interfere with what happens and what is said there should decrease relative to the degree of privacy.

Suzanne Bakker
Posted by Suzanne Bakker on September 6, 2012 at 17:24

Think before you post is always a good advice, and I would add to that: think about your privacy settings, too. It is perfectly possible to make a distinction between different kinds of friends on Facebook, with consequences for what these “friends” may or may not see.

However, what strikes me in the ruling is the Court’s lack of knowledge of social media like Facebook (as shown by the use of “retweeting” in relation to Facebook ...), which I find worrying as it seems likely that similar cases will arise.

While I would agree that an employee needs be aware of the possible consequences of his or her freely expressed online opinions I think that the Court also would need to become better informed about how social media function, what privacy options they provide and to what extent any individual may or may not expect that his or her messages enter a truly public domain.

In my opinion, some messages shared in and addressed to a small, well-defined group online could be viewed more as “personal letters” than as messages that people could or should reasonably expect to possibly become widely shared.

It seems that in this ruling the Court does not take into account this nuance at all, presumably because the employee did not bring it up in his defence. I would, however, be interested in seeing a more elaborate, more balanced and better informed ruling tackling those subtleties and would also be interested in lawyers’ opinions on the possible nuances related to online sharing of thoughts, ideas and emotions.

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