Dutch Employment Law - May 2013
Social Media
The Internet is everywhere and each day our digital footprint grows larger. At home, but also at
work, we are making large-scale business and personal use of the Internet. Accessing the Internet
and social media at work using a PC and/or smart phone provided by the company is increasingly
just a fact of life. Employers are finding both opportunities for recruitment and selection, name
recognition, in the use of social media by potential and current employees, and encountering risk
from it, such as negative publicity. In this contribution we take a closer look at the boundary between business communications and personal expression in social media, its control by the employer, and the possible consequences for the employment relationship from the use of social media.
Privacy and Control
Utterances and communications in the social
media are often directly at the interface between business and personal. This has resulted more than once in a clash between the
employer's interests and the employee's right
to privacy and freedom of expression. The
employer's wish to protect its market position
will make any competitive sensitive information and the employer’s image seem all the
more conspicuous. The employer can deal
with sensitive information by imposing a duty
of confidentiality on its employees. This option follows from the employer's right to issue
instructions under Article 7:660 Dutch Civil
Code (DCC). In so doing the employer must
take account of the employee's fundamental
rights. The right to privacy will play a role in
exercising control, and the freedom of expression where there is any sanction.
The employee has a right to privacy, including
in the workplace. This principle follows from
Article 8 European Convention on Human
Rights and from the European Court's case
law. In the Netherlands the employee's right
to privacy comes up in good employment
practice and being a good employee (Article
7:611 DCC). If the employer wishes to infringe
on this it must have a justified interest and the
employer will have to be able to base its actions on rules that had been set in advance.
This could be a code of conduct or a protocol
directed at the use of the Internet by
employees.
For such a code of conduct to have effect it
can be included in the employee handbook
and/or be posted to the Intranet. If the code
of conduct goes beyond the employer's instructions for the use of social media, by including, for example, terms and conditions of
employment, it would be relevant for the code
of conduct to be made part of the employment agreement through incorporation. If
there is (automated) monitoring of compliance with the code of conduct, the company
council, if any, will have the right of consent
since this is a form of employee control and
involves the processing of personal details.
Personal versus business communications
Disputes brought to court pertain particularly
to damage to the employer's image and violation of the nonsolicitation clause. Utterances
or photos posted by employees can seriously
embarrass the employer and cause the busi-
ness harm. Suspension or dismissal can be
considered in such a case. The consequences
of conduct in the social media with respect to
an agreed nonsolicitation clause are also of
interest.
Where there is a nonsolicitation clause the
employer can prohibit the employee for a set
term after the end of employment, subject to
penalty, from making or remaining in contact
with any of the employer's business relations.
The court will judge in such cases whether the
alleged violation of the nonsolicitation clause
does justify the imposition of a penalty.
The judgement of these cases turns first of all
on the nature of the conduct, but the environment - the medium -in which the utterance
was made is also relevant. The court can consider the choice of a particular medium in
reaching judgement. The use of social media is
often association with communication for private purposes. However, the various social
media platforms are open to different types of
communications, both private and business.
Facebook is driven especially by the sharing of
personal information, photos, and the personal tie among users, while LinkedIn puts its emphasis specifically on the sharing of business
information. Twitter is aimed more at current
events and sharing of news and events.
Personal Facebook profile
The Maastricht Court ruled in February 2012
that such social media as Hyves, Facebook,
Twitter, and WhatsApp must be regarded in
principle as being private and personal and
that utterances on these therefore in principle
fall under the freedom of expression, unless
their business character is clearly and unambiguously evident to everyone. The court ruled
for this reason that the former employee had
not violated the nonsolicitation clause as
agreed.1
Other courts, however, have assumed that the
nature of the utterance, and not its medium,
leads. The platform on which these utterances
are made can be a relevant factor in the
judgement. Utterances in one's own profile on
Facebook could well be of a business nature
whereby the employer can have the authority
to impose sanctions. The Arnhem Court ruled
in March 2012 on utterances by an employee
on his personal Facebook profile.2 The court
found that there was gross insult of the employer and that the employee's statements no
longer had anything to do with the freedom of
expression. The employer's application to
terminate the employment agreement was
therefore granted without need to make any
compensation. In this decision an utterance
made on the personal Facebook profile was
viewed as being only relatively private, also
because users' postings could easily be
shared. Giving a (final) warning can be relevant in establishing urgent cause for termination.3 It is also possible to violate a nonsolicitation clause through Facebook at the moment
that an employee actively approaches his former employer's customers and/or business
relations on this platform.4
LinkedIn
LinkedIn is pre-eminently a business network.
The fact that mutual consent is necessary to
link with each other, distinguishes this network from Twitter, for example. On LinkedIn,
making a new connection is publicly visible.
This makes it relatively easy to establish a violation of any applicable nonsolicitation clause:
A notable decision in this regard is that of the
Arnhem Court of March 2011.5 The court
found that an employee had violated a nonsolicitation clause with a former employer by
"linking" with one of this former employer's
accounts. This account was named specifically
in the nonsolicitation clause. It is striking that
it is not clear in this decision who had sent the
2
invitation to link. On LinkedIn it may occur
that an invitation is long outstanding (still during employment), or that it comes on the initiative of the other party. Circumstances such
as these could influence the judgement of
such a dispute.
Twitter
Twitter is all about "following and being followed”. On this medium all information is
public so that following competitors for that
reason cannot be qualified as unlawful, as the
Amsterdam Subdistrict Court found.6
The Amsterdam Court of Appeal ruled on the
violation of a nonsolicitation clause pursuant
to a public announcement on Twitter.7 A recruiter had contact through Twitter with a
candidate she had known from her previous
employer. The candidate responded with a
personal message to a vacancy but this was
followed by a conversation that was visible to
the public. The recruiter had a nonsolicitation
clause with her former employer (a recruiting
agency), which prohibited her to have or
maintain any contact with clients of the company for one year following the end of her
employment agreement. The defence that the
candidate responded to an open vacancy
could not avail. The court deemed it plausible
that the recruiter had in any case violated the
nonsolicitation clause at least once.
In 2011 the Court of Appeal in The Hague also
took up the alleged violation of a nonsolicitation clause.8 The Court followed the lower
court in its opinion that this involved a general
message by which there could be no violation
of the nonsolicitation clause. Following on
Twitter is a unilateral act by the follower and
not initiated by the owner of the Twitter account being followed. An invitation to do so
and its acceptance are not necessary, other
than is the case with Facebook or LinkedIn.
The tweet is a modern form of advertising
aimed at those seeking work who have applied to multiple companies and thus are in
both card files. The Court of Appeal in The
Hague did acknowledge that business communications are possible, but a general message on Twitter, according to the Court, cannot constitute "maintaining business contacts".
Cross-Border
Social media are not confined within national
borders. Their reach can be very great, such
that the world at the same time has been
made smaller. For employers this means that
account must be taken of the broad and international reach of their own employees. These
can be utterances made in words but also
through the sharing of photos and the like.
Facebook seems, for now, to be the greatest
culprit here.
A decision was handed down in England comparable to that in the Netherlands concerning
Facebook and the fact that utterances on this
medium can be deemed only relatively to be
private and personal. Utterances can easily be
shared without their sender having any control over this. The English court rejected the
employee's reliance on his right to privacy
since the employee no longer had any control
over the distribution of his message and
thereby could no longer safeguard their privacy. As for the freedom of expression, the court
ruled that the limitation of that right was justified and proportionate to the employer's interest to protect its business interest. Furthermore, the court found that the nature of
these utterances does not qualify for protection under the freedom of expression. The
same picture is seen in court decisions in the
US. The court ruled on the dismissal of an employee who had posted a compromising photo
with text on Facebook. The employee's priva3
cy settings had allowed "friends of friends" to
see, and share, the photo. This made it possible for the photo to have reached more than
one thousand people. The dismissal of the
employee was upheld.
Conclusion
It is no longer possible to think of our daily
lives without the social media. Nearly everyone, employers and employees, have profiled
themselves on one or more social media platforms. It is clear from case law that it is important for employers to be aware that social
media are being used during business hours,
and to acknowledge and guide their use.
Damage is sooner done than cured. When
controlling and authorising the use of social
media, the employer will have to balance his
interest to protect its market position with the
employee's interest in his right to privacy and
freedom of expression. It seems that case law
sets stricter requirements for employees with
respect to the way in which they express
themselves and the possibility of (rapid) distribution of these utterances. We will of
course keep you informed of developments in
case law in this area.
Eugenie Nunes
eugenie.nunes@boekel.com
Annemarie Roukema
annemarie.roukema@boekel.com
1
Maastricht Court (President) 8 February 2012, LJN: BV3122.
2
Arnhem Court 19 March 2012, LJN: BV9483.
3
Arnhem Court 11 April 2012, LJN: BW2006.
4
Rotterdam Court 29 August 2012, JLN: BX7261.
5
Arnhem Court 8 March 2011, LJN: BP8592.
6
Amsterdam Court 15 June 2011, IEPT20110615.
7
Arnhem Court of Appeal 17 April 2012 LJN: BW4592, upholding the decision of the Arnhem Court of 24 November 2011,
LJN: BU7469.
8
Court of Appeal of The Hague 21 February 2012, LJN: BW0090 upholding the decision of the Rotterdam Court of 30 August
2011
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