Imagine that a particular social network guaranteed its users the following: If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know. The challenge was to protect all users of this social network from improper treatment by their employers for actions taken through this means. The idea could be that there should be no occupational consequences for the use of social network. However, as we will see, reality shows that we can have different scenarios depending on the specific case.
Thus, it is important to analyze the issue in the light of Portuguese Law. The issue of freedom of expression and protection of the confidentiality of the worker through social network and the effects of their violation are taken here. This topic is not new to Portuguese courts. In fact, in 2014, the Court of Appeal of Porto (CAP) was accurate in its analysis of a case related to the social network Facebook. It follows from this judgment that there is some rigor in the approach to this issue when it states that “Social network has given rise to new spaces that do not easily lead to the traditional spheres that are progressively extended around the irreducible intimate core of the individual’s privacy, which increases the difficulties in tracing the contours of the privacy that deserves the protection of confidentiality, so it becomes necessary, for the characterization of each situation, a careful case-by-case appraisal.”
Continuing, according to the CAP, it is of fundamental relevance to weigh the various factors in presence – namely the type of service used, the subject matter of the publications, the parameterization of the account, the members of the social network and their characteristics, the number of members and other factors that may be relevant in each case to be analysed -, in order to be able to conclude if in the situation sub judice there was a legitimate expectation that the established circle was private and closed. In this way, there is no expectation of privacy, and the worker is aware that publications have possible professional implications, namely because they are defamatory to the employer, coworkers or superiors, and may go beyond the boundaries of a “group” created on the social network Facebook, he is not entitled to invoke the private nature of the group and the “personal” nature of the publications, and does not benefit from the confidentiality protection provided for in Article 22 of the Labor Code.
The CAP ruling raises a fundamental issue regarding the use of social media and its consequences: the existence of an expectation of privacy on the part of the employee. This way, there will be no such expectation when an employee behaves inappropriately on a social network and could be disciplined if done physically. This seems to be the essential boundary for imputing disciplinary responsibility. When the social network makes itself available to sponsor legal support in these matters, its reach cannot be unlimited. We must bear in mind that social networks are the new public space. As such, they are a new means of human intervention. Consequently, any conduct carried out by the employee through a social network that violates their work duties should be freely assessed by the employer, provided that there is no violation of (i) the protection of confidentiality; (ii) of freedom of expression.
In the coming years, these issues will grow in importance, as the dynamics of social networks will increasingly be part of the labor conflicts of the future.
Equipa DCM | Littler
