Social network: employee’s freedom of speech VS employer’s image

Tatiana Samarina, Senior Lawyer at the Law Firm "YUST"

“Economy and Life” newspaper (No. 34(9450), 2012)

Every piece of information that is published in any social network spreads among millions within seconds. This is the reason why the employers have started paying special attention to the web pages of their future employees, whom they plan to hire. However, this control does not end at the hiring stage - the employee’s social network publications regarding the employer may gravely affect the latter’s reputation. Can a company be protected from such risks?

Social networks are rapidly developing; the numbers of their users are growing, and are in the millions. They are ever more frequently scrutinized by the employers. The discussions of the cases of dismissal of employees for their incorrect statements in the Internet were many last year – and this year too: videos of the public servants’ confessions.

The Russian legislation and the practice of law application are currently unable to give a universal answer (if there is any such thing at all) to the question of the limits of optimal control of the employer over the on-line activity of the employees in order to prevent the damage to the company’s reputation.

It is practically impossible to prove the casual effect of the publication over the damage

The casual effect of the conduct of the employee’s, who made an incorrect remark in the Web, over the subsequent unfavourable consequence for the employee can hardly be proven, just like the very existence of the damage sometimes. We may attempt to address the problem from the point of view of labour discipline by regarding the incorrect remarks by the employee towards the employer in the social network as a disciplinary offence. Hence, a disciplinary offence is a guilty, illegal non-fulfillment or undue fulfillment by the employer of his work duties (Article 192 of the LCRF), including violation of work instructions, local normative acts, orders and directions of the employer.

As the definition above shows, direct connection of the employee’s conduct with his labour duties is a key element of the composition. In practice, this means that the employer:

• First, is entitled to include in the corporate ethics code the obligation of each employee to abstain from the actions (inaction), which may bring damage to the company’s reputation, including defamations of any kind;
• Second, will be obliged to acquaint all staff members with said document against signature;
• Third, if the respective publication is discovered, will be obliged to register the fact of the offense and to demand explanations from the guilty employee.

However, even if all the above-listed measures are duly taken, this will not eliminate the risk of ruling illegal the dismissal of the employee by the employer. There are several reasons for such conclusion.

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