It is common practice to regulate employees’ use of Internet and social media through provisions of an Internet Policy. This policy must however, be established respecting the framework imposed by CBA No. 81 of 26 April 2002, on employees’ privacy with regard to the control of electronic communications networks.
Subject to compliance with legal, regulatory and contractual provisions, employers are free to determine the conditions in which the employment contract is to be performed. (Articles 17 and 20 of the Act of 3 July 1978 on employment contracts). Nowadays, it is undisputed that this includes the conditions of use of equipment made available to employees by the employer. Employers can therefore freely regulate the use of communication instruments within their company, particularly by prohibiting private use of the communication equipment available for use by the employees, by banning the access to certain websites (including social media sites) or by blocking this access by the use of filters. In that regard, the following principles must be stressed:
An employee who disparages the employer via social media can be dismissed for serious cause when the statutory requirements are met. However, as always in case of serious case, the precise circumstances and the possible aggravating or alleviating circumstances should be taken into account. Furthermore, it is advisable to adopt clear guidelines in the company with rules on who can speak on behalf of the company via social media, both for professional and personal accounts, and what types of information may be divulged. Recent case law accepts as evidence of serious grounds for dismissal, the information present on public profiles, as well as some private profiles, where the confidentiality parameters allow the access of posts to an important number of friends and / or colleagues.
