You don’t have to be a new investor in Facebook stock to feel a little let down by social media sites at the moment. Watching the value of your stake spiral earthwards by 15% in less than a week must be depressing if you are a bank or a pension fund, but it is not nearly so personally painful as the moment where you realise that you have written something stupid about your employers on Facebook and they have found it. To borrow the colourful Wall Street phrase of many over-heated investors in the “Cult of Zuckerberg”, your career could suddenly be completely “zucked”.
Across Europe and the rest of the world the Labour Courts are struggling to draw a clear line between posts which are objectively inappropriate and those which merely represent the exercise of the right to free speech. For example, in France the Tribunal in Boulogne recently ruled lawful the dismissal of three employees of one company who expressed their collective job dissatisfaction by calling themselves members of “Le Club Des Miserables” on Facebook. Similarly, the German Labour Tribunal in Rhineland found unlawful the dismissal of a group of employees who disparaged the good names of their supervisors and colleagues, but only in a private Facebook conversation.
The Polish Labour Courts will be dealing with the same matters more and more. The Polish Central Statistical Office records that over 60% of the population uses the Internet, of whom 95% also use one or more social networking sites. That means over 8million Polish Facebook users as at the end of April, up by over 1.2million from just six months earlier. Of that 8million, over a half are in the 18-34 age range. Combining the rapid growth in numbers with the young demographic, the Polish Employment Law Courts can no doubt soon expect the same growth in cases in this difficult area. There is no legislation in Poland specifically concerning employee misconduct on the Internet which might help them. Under the Polish Labour Code an employee is required to act in the employer’s best interest. However, the employer’s rights do not exclude the freedom of an employee to express his opinions of it, even if these are not very flattering. According to a number of Polish Supreme Court rulings, employees may express criticism if it is “permitted”. Criticism of one’s employer is permitted where the employee does not act in bad faith and does not intend to do harm to the employer. Leaving the legitimacy of critical comments to be assessed by reference to the writer’s state of mind rather than the impact of the posts on the reader could be argued to miss the point, but to that extent at least the law seems clear. An employee who criticises his employers in an inappropriate manner must be prepared to be dismissed with or without notice. He may also face criminal proceedings for alleged defamation.
On the face of it this means limiting oneself to factual comment as opposed to insult or abuse, but that is a far harder line to tread in practice than in principle.