The use of social media has taken off in recent years. Providers of the social networks such as Facebook, Myspace, LinkedIn and micro-blogging networks (Twitter) are sprouting like mushrooms. There were 41.7 million regular users of social network sites in Europe in 2008 and 250,000 users sign up to social networks every day worldwide.1 Recent research by TNS shows that 28% of Dutch people with internet access use social media on a daily basis. On average, they spend 2.3 hours each week on them.2
The surge in use of social media also has an increasing effect on employment relationships. A user profile is built up on the social media sites, containing personal information and features, after which the user shares information with anyone who wants to read it. The information shared by the users generally refers to what they have been up to during the day, including at work. Recruiters are only too happy to get their hands on this sort of information for pre-employment screening. Social media can also be used by companies for marketing purposes. The flip-side of social media is the danger of employees saying things that might be harmful to their employers. For instance – deliberately or otherwise – commercial secrets can be leaked, adverse comments can be made about employers and colleagues, or other comments or photos can be uploaded that do employers no favours. It also happens that employees spend a lot of their working hours visiting social networking sites, therefore not doing the work they’re being paid to do. What are the Dutch standards (under employment law) that play a part in the use of social media by employers and employees? This article discusses several different situations.
Pre-employment screening
User profiles and messages on social networking sites offer a great deal of information about potential employees, which is why lots of applicants’ profiles are examined. Applicants are often unaware that the photos and messages they have put on Facebook or Twitter can play a part in pre-selection by recruiters. There is no ban in the Netherlands against employers consulting information published by an applicant on a social networking site. While there are restrictions on gathering personal information under the Dutch Personal Data Protection Act (PDPA), these do not apply if the information was published by the person concerned. Nor do the restrictions under PDPA apply to other tracks that applicants might leave behind on the internet. This means that Dutch employers are free, in principle, to ‘Google’ candidates and refine their selections on the basis of this. There is advice to the effect that the information should be discussed with the candidate, telling them where it was sourced.3
Use of social media
While there is not, as yet, any published Dutch case law on disciplinary sanctions resulting from the use of social media, some examples have appeared in the media:
- A TV presenter Tweeted just after the voting in the Eurovision Song Contest 2010, ‘the Netherlands has some comical export products: Sieneke, Joran van der Sloot and the PVV’, whereon the broadcasting station decided to terminate the co-operation.
- An employee at a care institution was suspended after making a comparison on Hyves (similar to Facebook) of her work with the mentally handicapped with the work of an assistant at a wildlife park.
- A police chief was suspended following the Tweet:
- ‘Just heard that two people have been found dead in Meppel, on my patch. Bound to be a domestic, so better get on the phone.’
- It turned out that the people had died from carbon monoxide poisoning.
- An employee had called in sick due to a hernia, but then put up some photos on Hyves showing himself leaping around at a concert. He was dismissed.
The question of how far an employer can limit the use of social media, during working hours and at other times, is determined by the right to freedom of expression and the right to privacy, embedded in the Constitution of the Netherlands and international treaties. In Dutch employment law, these fundamental rights manifest themselves in the standards of good employer and employee behaviour, reasonableness and fairness, and the right of an employer to issue instructions.
Recent research by Cisco has shown that 41% of employees worldwide assert that their use of Facebook is restricted by their employers. The figure is 35% for the use of Twitter. Two-thirds of employees think that this policy in relation to the use of social media should be relaxed.4 However, there’s an assumption that, by entering the workplace, the employee is conceding an element of their claims to privacy. When the employment contract is signed, the employer gains an element of control, which also includes a right to issue instructions. In principle, an employee should obey instructions given by the employer. To safeguard confidential information, and avoid damage to the business, the employer has the facility – in terms of a general right to issue instructions – to limit the use of social media during working hours, for instance by setting up a protocol or guidelines.
Any policy of this type should respect the employee’s fundamental rights to a certain degree. In the case law concerning the sending of private e-mails, it appears that an employer must accept, within certain limits, that an employee will keep in touch on a private level during working hours. The employer must safeguard the privacy of these contacts. The employer cannot issue a blanket ban on the use of social media. The risks of unacceptable comments on social media, during working hours or at other times, can be minimised as far as possible, however, by having a clear and comprehensible policy for the use of social media that also contains a system of sanctions and the facility for inspections. When the policy is being introduced and also when any disciplinary sanctions are being imposed for breaching that policy (eg a warning, suspension or – in the most serious cases – dismissal), the interests will always have to be balanced between the employee’s rights of privacy and freedom of expression on the one hand, and the employer’s interest in restricting these on the other hand. The sanction must also be proportionate to the nature of the infringement. If comments are made outside working hours, a balancing of interests is even more important, because the employer’s control is limited to the workplace. What is involved then is primarily good conduct as an employee. After all, a good employee can be expected not to make any deleterious comments about their employer, colleagues or anything else that might be damaging to the employer, whether during working hours or at any other time.
When the case involves the disclosure of confidential business information, for instance by naming customers or other commercially sensitive information, the employer can also act on the basis of breach of contract if the actions were in breach of a contractual confidentiality clause and/or any other provisions prescribing secrecy. In such a case, the employee can (also) be charged with failing to observe the standards of good employee conduct, where serious weight is given to the employer’s interest in observing discretion concerning any commercially confidential information.
Checks by employers
Preparing a policy for the use of social media will not be feasible in practical terms unless there are facilities for undertaking checks. The information collated for this can be classified as personal data, covered by the scope of the PDPA, which protects the right to privacy and includes statutory obligations regarding how personal data is processed.
Under PDPA, an employer is obliged to inform the Dutch Personal Data Protection Authority (College bescherming persoonsgegevens) of its policy. The data must be processed properly, carefully and legally. The data must also only be collated for certain explicitly described and justified purposes. This means that the employer must specify and publish the purpose of the check. It must also observe the principles of proportionality and subsidiarity: the processing has to be necessary; the infringement of personal life must be proportionate to the intended purpose; and the processing must be discontinued if the objective could be achieved by less intrusive means.
Furthermore, a code of conduct combined with a system of checks will have to be approved by the works council in terms of the Works Councils Act.
Conclusion
The use of social media has increased exponentially in recent years. On the one hand, employers can benefit from this, for instance by consulting social media sites during pre-employment screening. Employers can also use social media sites for marketing purposes. On the other hand, employees can make comments that do employers no favours, or they can use social media (excessively) during working hours. Employers can counter this as far as they can by having a simple and comprehensible policy on the use of social media and confidentiality of secret business information, which also incorporates sanctions and methods for undertaking checks. In doing so, they need to bear in mind their employees’ rights to privacy and freedom of expression. However, employees can be expected to behave themselves like good employees, even outside normal working hours. If an employee breaches the policy, then disciplinary sanctions may be appropriate after the balance of interests has been properly considered. The gravity of the disciplinary sanctions must be proportionate to the nature of the infringement.
By Karin van Zijtveld, lawyer, and Hanneke Klinckhamers, senior counsel, Boekel de Neree.
E-mail: karin.vanzijtveld@boekeldeneree.com; hanneke.klinckhamers@boekeldeneree.com.
- See http://ec.europa.eu/information_society.
- See http://www.tnsnipo.com.
- According to the Dutch Association for Personnel Management and Organisational Development (NVP) Application Code of the Netherlands Personnel Management and Organisational Development Association.
- See Cisco Connected World survey, www.cisco.com.
