Insights

Limiting posts by (former) employees about their employer on (social) media, is it possible?

Social media are a significant part of everyday life, and we see this reflected in our practice. We are increasingly approached by employers dealing with (former) employees who make negative or incorrect statements on social media or seek out the press: can they act against this?

Freedom of speech on social media not unlimited

Employers tend to be reluctant about acting, because (former) employees have freedom of speech and employers do not want to limit them in advance. The question is whether this is justified.

Although freedom of speech is a great good in the Netherlands, which also applies to the employment relationship, freedom of speech does not go as far as allowing a (former) employee to make incorrect or negative statements about his (former) employer. Nor is the (former) employee free  to disclose unsubstantiated and insufficiently established facts, with the intention of damaging the (former) employer’s reputation (or accepting the risk of damaging the reputation).

If this does occur, for instance in case the (former) employee posts negative messages about his (former) employer or its staff, or because the (former) employee fails to make it known on termination of employment that he is no longer employed by the former employer, the (former) employer can take the (former) employee to court to demand removal of such messages. Of course, the employer must have a sufficient interest in doing so.

Example: (former) employee may no longer make negative comments under penalty of a fine

A recent ruling by the Alkmaar subdistrict court illustrates that a (former) employee can be legally prohibited from posting such messages in the future. In that ruling, the (former) employee was ordered to stop posting (negative) messages about the (former) employer and its staff on social media on penalty of a fine.

This ruling was based on the fact that the (former) employee had stated at the court hearing that he had posted the (negative) messages on social media about his (former) employer and (former) colleagues out of spite, that he regretted this and that it is not in his nature to engage in posting these kinds of messages. He had since deleted the posts. However, he had not unequivocally stated that he would not post such messages in the future, he believed he was free to express his opinion on social media and that he could not be restricted in this by his (former) employer.

For this reason, the subdistrict court ruled, the (former) employer still had an interest in an incentive to comply in the form of a penalty payment. The subdistrict court set the penalty at €500 per day (with a maximum of €5000) that the employee does not comply with the order.

(Social) media protocol?

For some employers, in addition to an individual confidentiality clause, it may be useful to draw up a (social) media protocol, setting out in advance what employees may and may not share on social media or with the press. This way, public complaining, or gossip about (former) employer or (former) colleagues in (social) media can be limited or acted against.

Would you like to know more about the usefulness and necessity of drawing up a (social) media protocol for your company? Then contact us, we are happy to think along with you!

 

Renske Van Herpen

Published On: 16 May 2024

Share this post

Ask a question