Social Media in the Employment Context – The Belgian Perspective

Lorenz Data Privacy Practice11.05.2012

• Introduction 3

• Use of Social Media in Recruitment Procedure 4

• Social Media Use During Working Hours 5 – 7

• Social Media Use Outside Working Hours 8 – 9

• Use of Evidence Collected in Violation of Privacy Laws 10

• Action Points11

Table of Content

2

• Social media? Concept: different applications which allow an individual to

make friends, share information, express opinions and connect with others.

Examples: Facebook, Twitter, LinkedIn, YouTube, MySpace, etc.

• Problems related to social media use of employees? Virtual absenteeism. Disclosure of confidential information. Damage to the company’s reputation.

• Legal framework in Belgium? No specific legislation. Difficult balance between rights of the employee (i.e. protection

of privacy and freedom of expression) and employer (i.e. productivity, loyalty and confidentiality of employees; authority of employer over its employees; and property rights regarding IT- infrastructure).

Introduction

3

• Legal Article 8 European Human Rights Convention. Data Protection Act of December 8, 1992 (hereinafter: “Data

Protection Act”). Collective Labor Agreement n° 38 of December 6, 1983.• Practical Permitted to consult information available on social media

webpages that are publicly available in recruitment process. Invitation to become “friend” to access private social media pages

risks to be considered unlawful. Collection of information on social media webpages and

processing in recruitment database triggers Data Privacy Act – process only information strictly necessary for vacancy.

Information consulted must not be used for prohibited discrimination based on age, health, handicap, gender, sexual inclination, skin color, race, origin, ethnicity, political or philosophical affiliations, religion, or trade union membership, which is obtained by screening social media profiles.

Use of Social Media in Recruitment Procedure

4

• Legal Employer’s property right and authority towards employees. Freedom of expression and employees’ privacy rights.

• Practical

Employer can restrict and regulate employees’ social media use during working hours.

Employer can completely prohibit use of social media on the workfloor, or allow use on separate hardware or during luchbreaks.

Recommended to stipulate expectations on social media use in (i) work rules; (ii) a general ICT-policy; or (iii) a specific social media policy, such as:Limitation of social media use during working hours; prohibition to disclose confidential information, post negative comments regarding employer or colleagues; to violate company’s intellectual property rights; to represent company on social media sites; to post material with content which may harm the reputation of the company; etc.

Use of Social Media During Working Hours -

Restriction of Use by Employer

5

• Legal Collective Labor Agreement n° 81 of April 26, 2002 (hereinafter:

“CLA 81”). Data Protection Act and Act of June 24, 2005 on Electronic

Communication (communication secrecy).

• Practical Monitoring permitted for specific purposes, i.e. (i) to prevent

illegal or defamatory facts; (ii) to protect company’s interests; (iii) to ensure security IT-system; (iv) to ensure compliance with internal policies.

Compliance with procedural requirements (e.g. identification of specific employee only after detection of violations or problems during monitoring on company level).

Notification of employees (individually and through representative bodies).

Employer’s possibility to sanction depends on presence of relevant provisions in work rules.

Social Media Use During Working Hours -

Monitoring

6

• PracticalContent monitoring ?

- Private media (e.g. private use of MSN or other chat applications):

- regime is comparable to private e-mail - monitoring not permitted

- Professional media (e.g. corporate chat program): regime is comparable to professional e-mail

- regime is comparable to corporate e-mail- monitoring requires consent (often impracticable); recent DPA report

appears to justify limited access based on employer’s authority/control rights

- Posting of information on public social media (e.g. Postings on Linkedin or Facebook): information can be monitored by employer because it is publicly available.

Social Media Use During Working Hours -

Monitoring

7

• Legal Employer’s reputation, economic interests and expectations of

employee loyalty v. Employees’ freedom of expression and privacy.

• Practical Employer can impose rules regarding social media use outside

working hours (e.g., prohibition to disclose confidential company information, disclose sensitive HR information, etc.).

Employer must tolerate certain level of criticism by employees. Employer can regulate use on public pages. Employer can also

impose conduct with respect to private pages (e.g. No disclosure of sensitive company secrets, confidential information, etc.).

Employer’s possibility to sanction depends on presence of relevant provisions in work rules.

Social Media Use Outside Working Hours –

Restriction of Use by Employer

8

Labor Court of Appeal Brussels March 4, 2010: Dismissal of employee representative for posting aggressive language directed towards the management of the company and his colleagues on public discussion forum, was not accepted because (i) the employee did not know that the discussion forum was publicly accessible; (ii) the employee did not have the intention to make information public; (iii) comments were made in the context of a conflict with the management; and (iv) comments were not threatening or insulting.

Labor Court Leuven November 17, 2011: Dismissal of manager for publication of financial results and negative comments regarding the management of the company on Facebook was accepted, because of the fact that (i) publication of such information has serious consequences for a listed company; (ii) the concerned individual lied about his function within the company; (iii) the information was posted only a few hours after the results were made public by the management; (iv) the manager had previously posted negative comments on Facebook; (v) information posted on a Facebook “wall” has a public character and does not fall within the scope of the privacy of an individual.

Labor Court Namen January 10, 2011: Dismissal of an employee for posting racist comments regarding a colleague was not accepted, because of the fact that the comments were made in the context of a conflict between the concerned individuals.

Social Media Use Outside Working Hours - Caselaw

9

• Prior to 2003: Unlawfully obtained evidence was automatically excluded from the court hearing.

• Change with “Antigone” decision of the Belgian Supreme Court (October 14, 2003 – criminal case): Unlawful obtained evidence should be excluded only if: (1) it constitutes a violation of formal requirements sanctioned with nullity, (2) the unlawfulness affects the integrity or reliability of the evidence, (3) use of the evidence constitutes a violation of the right to a fair trial.

• Confirmation of Antigone by Supreme Court decision of March 2, 2005 (Chocolatier Manon – criminal case).

• Supreme Court applies the same theory in civil cases (Decision of March 10, 2008).

• Practical importance: the Antigone doctrine softens the impracticallities concerning the use of e-mail / social media content without valid consent. Note, however, that not all legal uncertainty has vanished.

Use of Evidence Collected in Violation of Privacy Laws

10

Implementation of ICT-policy or social media policy which stipulates:

(i) when social media use is allowed (e.g. only during lunch breaks);

(ii)how long or often employees can use social media sites(e.g. only in exceptional circumstances);

(iii)how employees should use social media sites; (iv)the monitoring policy; and,(v)Sanctions (requires references in work rules).

Block certain social media sites. Implementation of a monitoring procedure in

accordance with requirements of CLA 81.Notify DPA of (i) corporate social media tools offered

to employees; and (ii) monitoring practices concerning such tools.

Action Points

11

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