Restrictions in the Workplace
In principle, the employer can restrict the use of the Internet and social media during working hours. An employer may control social media in the workplace if it is necessary for the performance of the employment contract and further is proportionate. Under these conditions, an employer may block social media completely. In contrast, it is rather unlikely that an employer is able to show a legitimate interest in controlling an employee’s use of social media outside the workplace. However, this may for instance hold true for ideological enterprises.
Can the employer monitor, access, review the employee’s electronic communications?
To the extent that the employment falls under the Labour Act, monitoring mechanisms are not permitted if they are directed at the employee’s behaviour. However, they may be permitted if they pursue other aims, for example, security or controlling the proper use of the work infrastructure and working time. Monitoring mechanisms need to be codified in internal regulations and the latter communicated to the employees.
In general, an employer will only be able to monitor peripheral data (such as the point in time of the communications or interactions, their length, and the involved connections). Monitoring the actual content of communications requires outstanding interests, which the employer will not be easily able to show. As regards telephone communications, they are in principle protected by criminal law.
If an employee disparages or even defames the employer or illegally discloses business secrets through the authorised or unauthorised use of social media, or through entries in publicly accessible blogs or assessment platforms, this can justify sanctions up to termination without notice. In addition, the employer can have such entries deleted or banned by court order and, if necessary, take criminal action against the employee.
