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An employee can tell everything about his employer on Facebook, but “in private”

The Court of Cassation has just clarified the limits of the freedom of expression of an employee on social networks: a discussion in a closed group is presumed private.

“Even if it is characterized, the abuse must not, in order to be sanctioned legitimately by the employer, concern remarks of a private nature. “

Although employees have the right to freedom of expression, regardless of the medium they use, the fact remains that there is a limit to this freedom – abuse (when words contain abusive language). defamatory or excessive) – and that the control of the employer can relate to the content of comments made by its employees on social networks.

the secrecy of the correspondence obliges the judge to determine if the remarks made on the social networks had or not a private character

Nevertheless, even if characterized, the abuse must not, in order to be sanctioned legitimately by the employer, concern remarks of a private nature. Respect for private life which implies in particular, as judged by the Court of Cassation in the Nikon judgment (Cass., 2 October 2001 n ° 99-42.942), the secrecy of the correspondence forces the judge to to determine, when it is seized of a dispute by an employee of a sanction motivated by the remarks made by the latter on the social networks, if these remarks had or not a private character. If he finds that they were private, the judge then invalidates the sanction.

But are comments made on social networks private? There is no doubt that this assessment of the public or private nature is a delicate exercise: it is already so when the remarks were made outside the usual time and place of work (see in particular Cass.soc., October 8, 2014 no. 13-16793); it is even more so when it comes to comments made on social networks where privacy settings can be very variable.

Impact on the burden of proof

With regard to Facebook in particular, the judges of the fund have for several years been committed to determining whether the “Facebook wall” is presumed public or private. A presumption that has an impact on the burden of proof. Indeed, if the “Facebook wall” is presumed private, it is the employer …

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