Negative posts about former employer on social media.
As an employer, can you do anything about this?
A former employee posted several very negative messages about her former employer on social media. The employer then initiated interim relief proceedings against the former employee, seeking an order for her to remove the posts and post a rectification on social media.
In these proceedings, the employer argued that the messages were unlawful against the company and that the company was suffering damage as a result. For instance, after the posts, the company received “1-star reviews” on Google for the first time. Other employees also subsequently left, and a key customer indicated that they no longer wanted to do business with the company.
The former employee’s primary defense was that she did not post the messages. However, the court found it plausible that the employee had indeed posted the messages, since they contained information that only the former employee could know.
In addition, the former employee argued that the company had brought people spreading negative messages about it upon itself.
The court then considered that a clash of two fundamental rights was at the heart of the parties’ dispute: the former employee’s right to freedom of expression as enshrined in the Constitution and the ECHR, versus the employer’s right – and the other employees’ rights also promoted by the employer – to the protection of its reputation under the ECHR.
One right is not more important than the other, so the question of which right should take precedence here, and thus be allowed to infringe the other, was determined by weighing up all the circumstances of the case. The court found that, in certain circumstances, insulting language used to expose a certain (social) wrongdoing may, in principle, be permissible, but there should then be sufficient substantiation for such wrongdoing in specific facts.
The court held that in this case, some of the posts made on social media were unlawful: the former employee had accused the employer of modern slavery and she had accused one of the company’s directors of creating an unsafe work atmosphere. However, these claims were not substantiated and, without specific facts, posting such messages was unlawful. Since the former employee knowingly posted the messages, this could also be imputed to her.
This means that the former employee’s right to freedom of expression in this situation is outweighed by the company’s right to the protection of its honor and reputation.
Deleting the messages
The court then ruled that the posts had to be removed within 48 hours and the employee was to post a rectification on social media. In addition, the court imposed a penalty payment on the former employee as a stimulus to comply with these obligations.
In a nutshell: if there is wrongdoing, then as a (former) employee you are allowed to expose it on social media, even if that damages a company’s interests. However, this does require you to be able to substantiate the wrongdoing with specific facts. Unsubstantiated online accusations are another story, and as a former employer you can successfully oppose them.
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