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06. Social Media and Data Privacy in Belgium

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06. Social Media and Data Privacy in Belgium

Restrictions in the Workplace

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.

Can the employer monitor, access, review the employee’s electronic communications?

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:

  • the employer can decide whether to allow access to social media through its equipment and for what purposes;
  • the employer has a right of control in order to make sure the company ICT policy and instructions are observed. However, this right of control is subject to the rules of the above mentioned CBA No. 81 of 26 April 2002. The control is limited to the nature of the website visited, the frequency of the visits, the periods and time of connections, and cannot target the content of the communications or the content of the pages consulted. Employees must be informed of such control and a statement should be submitted to the Supervisory Authority;
  • in any event, the right to the protection of personal data must be respected when processing such data (GDPR (General Data Protection Regulation) and Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data).

Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information

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.

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