Employee use of social media: Private,public or something else?

Abstract

This article examines the use of social media at the intersection of work and private life and analyses how employers are permitted to intervene in employees’ social media behaviour. In the article, this phenomenon is described as the hybrid role of an employee. It is created when a person adds work-related information to their personal social media profile and when employers encourage personnel to highlight their expertise and employer-related issues using personal social media accounts. The content of an employee's social media bio and social media postings, as well as an employer's social media policy, create a complex framework spanning the private and public domains. In addition, an employer's intervention in an employee's social media posts constitutes an interference with that employee's freedom of expression and private life, which are fundamental and human rights. Therefore, a compelling reason must exist for an employer to interfere with an employee’s use of social media. Factors that influence this assessment include the employee's position and duties, the closeness of the connection between the social media content and the employer, the (harmful) effect of this content on the employer or its activities, the veracity and public-interest value of the content, the proportionality of the sanction and its compatibility with the employer's social media policy.

1. Introduction

Information technology enables everyone to express themselves to the public at large. ¹ With a few clicks of the mouse, information can be disseminated quickly to millions of people across the globe. This also creates excellent opportunities to promote one's business and expertise and communicate with existing or potential customers. ² Thus, social media can be used to improve companies’ bottom line and maximise profits.

This is why some employers encourage their employees to act on social media, take a stand on work-related issues, or highlight work-related expertise. Even if an employee uses their personal social media account as a private person, such communication in certain occupations and/or industries is likely to promote the employer's business interests or otherwise strengthen the employer's visibility on social media. Nevertheless, while a social media presence creates tremendous potential benefits, its use in business involves risks, ³ as increased use of social media by organisations and their employees can also cause a variety of problems. ⁴ For instance, conflicts may arise when employee social media behaviour harms the employer's reputation or causes negative reactions from customers. ⁵ Moreover, ease of communication can lead to information being posted that is damaging to other people or the employer. Such posts can damage the employer's reputation in the eyes of others. Depending on the country, this may involve defamation, which may be either against the employer or its representatives, leading to civil or criminal liability. In many countries, however, defamation can only be directed at a natural rather than a legal person. In addition, posts can also be harmful even when they are not defamatory. Common defences against defamation include appeals to the truthfulness of the comment at issue or the fact that employee has acted reasonably and in good faith. ⁶

Finally, an employer's reputation can suffer even if a social media post does not concern the employer at all. For example, far right or racist opinions or comments that are offensive to sexual minorities can offend an employer's clients or business partners and tarnish its reputation in their eyes if, for one reason or another, an employee's actions are associated with the employer. Sometimes even harmless posts can unleash a firestorm of unforeseen and unpredictable consequences. ⁷ Employee comments may thus lead to financial or legal consequences for the employer. ⁸ In such situations, the employee may invoke freedom of opinion, but it is important to note that where freedom of opinion is unrestricted, freedom of expression is not. ⁹

This article aims to identify and describe the legal dimensions of a person combining their private and work roles on social media. On the one hand, employers are entitled to encourage employees, in their social media policies, to act on social media and highlight their expertise, but, similarly, employees are usually free to name their employer in their social media profile. In all, due to the diversification of social media usage, it is increasingly difficult to understand employee use of social media in different contexts through the dichotomy of private and work life. ¹⁰ This is why new approaches are needed.

In addition to legal material, we use other types of research data to describe the key features of social media use and social media policies, including the policies of companies. ¹¹ The legal analysis utilises traditional sources of law; however, we emphasise the EU legal dimension in both legislation and jurisprudence (the Court of Justice of the European Union (CJEU)). In addition, the European Convention on Human Rights (ECHR) and other international conventions and the practice of the European Court of Human Rights (ECtHR) are considered. It is important to note that the ECHR has (direct or indirect) horizontal effect in the employment relationship – otherwise the rights would not be fully realised. ¹² States may also have positive obligations to ensure the protection of human rights between private individuals. In terms of national legislation, we rely mainly on Finnish legislation, although it serves above all as an example, as the same content can also be found in the regulations of some other European civil law countries. As social media platforms are the same in different countries, we have strived to utilise the legal and other literature in a way that is compatible with and serves the systematisation of the phenomenon.

This article does not deal with occupational safety responsibilities, harassment or discrimination relating to the use of social media. The question of when an employer has the right to terminate an employee's employment contract based on that employee's social media behaviour is not our focus, because the subject has been addressed in various legal cultures and jurisdictions based on the case law in those countries. ¹³ Nor is the participation of personnel in the drafting of social media policies examined. Moreover, we do not analyse the role or legal status of social media influencers, as they are usually entrepreneurs and not employees hired by someone else. Nonetheless, social media influencers could also be considered to include company employees who use personal social media accounts to promote the wishes and interests of the company or employer.

In the following, we first address employer social media policies and how they should be interpreted legally (section 2), after which we analyse employee social media profiles from a legal perspective (section 3). The analysis then continues to an assessment of whether social media can be considered an employee's work tool (section 4) and how the employee's right to freedom of expression and private life is guaranteed (section 5). The article ends with a presentation of the employee's hybrid role and a reflection on what this means, for example, in terms of the need for future regulation or legal remedies.

2. Employer social media policies and their legal nature: are they binding on employees?

2.1. The objectives and typical content of social media policies

Today, social media plays a significant role in building the image of companies and other organisations. To promote their business interests, employers are keen to curate their company's visibility on social media and at the same time strive to manage and prevent potential business risks. In short, it is about managing the corporate image. ¹⁴ Negative publicity on social media harms the organisation's reputation, ¹⁵ while a positive image promotes the organisation's communication and business goals. A key means of managing social media publicity is the use of social media policies aimed at the organisation's own personnel.

Social media policies are often rather similar in different companies, although company- and industry-specific differences exist. In her analysis of common themes in social media policies and guidelines, Jane Johnston proposes the following classification:

Identification with organisation and disclosure;

Private versus public distinction;

Transparency and fake promotions;

Leading debate and expressing commentary;

Staff as ambassadors and creating conversations;

Prohibitions and confidentiality;

Legal guidelines;

Non-compliance;

Moderation of comments;

Impact and global message;

Purpose or aim;

‘Help you’ clause;

Links or reference to other policies. ¹⁶

Our interest focuses specifically on aspects of social media policies that seem to blur the boundary between working and private life. This phenomenon is concretely expressed in the clauses of social media policies drawn up by employers, which both encourage employees to share their expertise ¹⁷ on social media and also stress that the employee's social media communication can be linked to the employer. ¹⁸

2.2. Social media policies as code of conduct or code of ethics?

There are usually no special legal regulations for using social media in working life, so potential problems are resolved according to general legal rules and principles regarding the employment relationship. In addition, fundamental and human rights, such as the right to private life and freedom of expression – which includes not only the right of expression but also the right to receive information and opinions – must also be taken into account. Consequently, employers have created company-specific social media policies to standardise and guide staff use of social media. Such self-regulation is often used when no current legislation exists to regulate the matter at hand. ¹⁹ Thus, social media policies have emerged to fill a gap where there is no precise legal regulation.

As a phenomenon, social media policies can be linked to methods of modern management, such as corporate governance systems, ²⁰ since larger employers, ²¹ in particular, use management and administration systems to standardise different groups of issues. ²² When attempting to understand social media policies as legal regulation, code of conduct and corporate code of ethics represent a similar and therefore useful phenomenon to which social media policies can be compared. ²³ A corporate code of conduct contains general business principles and guidelines that determine how a company operates in different situations and groups of issues. Code of conduct norms define matters at a more general level, and they often refer to more detailed norms, such as specific policies. ²⁴ A code of ethics, on the other hand, is more value-related and expresses the kinds of values that are considered desirable in the organisation in question. ²⁵

Codes of conduct or corporate codes of ethics – including social media policies – clarify issues relating to ‘unregulated spaces’, which is generally considered beneficial, as the employer sets out its values and the kind of behaviour that is expected from employees. Correspondingly, employees can assess the acceptability of their own behaviour or attitudes. ²⁶ However, code of conduct norms have been criticised for aiming to define life outside the workplace and for attempting to standardise the values and beliefs of company employees. This development has been aptly described as the privatisation of labour standards ²⁷ and legalisation of moral duties. ²⁸ A similar development can also be observed in relation to social media policies.

2.3. How to structure the legal basis and the binding nature of some policies?

The key question is the binding nature of social media policies, in other words, the analysis of their legal basis. The starting point of the analysis is clear: as a rule, the employer has no statutory or collective agreement-based obligation to implement a social media policy in the organisation. ²⁹ Since social media policies are not regulated elsewhere, the employer has the right to make a unilateral decision to implement a social media policy in the organisation if the employer considers that such a policy is required in the organisation in question. However, national legislation may require the participation of personnel, which in practice means implementing the policy in cooperation with employees. ³⁰ In addition, it is possible that agreements are made separately, especially via the employment contract. ³¹

Based on the above, the binding nature of the social media policy in relation to the employer (i.e., how it entitles and obliges the employer) primarily entails the following points:

the employer can decide unilaterally whether to use the social media policy,

the employer can determine the content of the social media policy based on the organisation's needs,

the employer must implement the social media policy equally for all employees, and

the employer enjoys the right to change or update the social media policy if necessary, as a rule, following the same procedure used to create the original social media policy. ³²

As an employer's unilateral decision-making is considered the legal basis of social media policies, in order for a policy to be binding, the terms and conditions contained therein must not contravene fundamental and human rights or mandatory legislation, which would render them non-binding or even void. ³³ Moreover, in principle, the employer also cannot validly issue orders that do not relate to work tasks outlined in the employee's employment contract or that regulate the employee's free time. ³⁴ However, it should be noted that, for example, the duty of loyalty of the employee is considered to extend to free time in some work roles. ³⁵

In addition to the employer's unilateral decision-making, contractual obligations must also be analysed as a basis for the legally binding nature of social media policies. A contractual obligation arises, for example, when the employer obliges a new employee to sign a commitment – usually as part of the employment contract or its appendix ³⁶ – in which the employee confirms ³⁷ that they have familiarised themselves with the company's instructions, standards and policies ³⁸ and agrees to comply with them. ³⁹

Often, it is the employer who wishes to make the social media policy ‘parallel’ to the terms of the employment contract. However, it is unclear why employers should wish to include in the contract a condition initially based on, and deriving its legal basis from, their unilateral decision-making. One explanation is probably the desire to ‘strengthen’ the effectiveness of social media policies via the employee's signature and assurance, the aim being to prevent activities that violate social media policies, thus informing the employee about the policy and outlining the kind of sanctions that may result from violations. ⁴⁰ As mentioned earlier, there is a legal difference between a social media policy set out in an employment contract and one decided unilaterally by the employer, although the employee can violate both the policy and their employment contract obligations simultaneously, especially if the social media policy is included in the employment contract. ⁴¹ Secondly, a breach of the employment contract seems to be understood as a more significant violation than the violation of norms ‘only’ set out in a social media policy determined unilaterally by the employer. Thirdly, from the employer's perspective, transforming social media policies into contractual obligations ⁴² can also form a part of the policy implementation process. ⁴³ The employer may simply wish to ensure that the employee is aware of the existence of the policy and its content. ⁴⁴

The assessment of whether a social media policy is binding is influenced by its normative force. Social media policies do not necessarily contain unequivocal commands or prohibitions, but rather recommendations or aspirations. ⁴⁵ A pertinent example of a condition with a vague normative effect is the obligation on the employee to follow ‘online etiquette’. ⁴⁶ The existence of such aspiration- or recommendation-type conditions is explained by employers’ de facto attempts to use social media policies to guide employee use of social media in, for example, their free time, even though, as a rule, the employer enjoys no such right. Therefore, how should the binding nature of such conditions be understood?

Soft law represents one possible way to approach the bindingness of aspiration- or recommendation-type social media policy conditions that are vague in terms of obligation. ⁴⁷ A soft law approach allows one to escape from the traditional binding–non-binding (enforceable–non-enforceable) norm dichotomy. Thus, even if the bindingness of a social media policy appears to be legally weak – i.e., it appears as a set of non-enforceable norms – such a set of norms can, de facto, strongly oblige employees if they perceive the policy as an obligation and act in accordance with its conditions. ⁴⁸ In this case, the employer has achieved the initial aim of creating the social media policy, namely, to guide employee social media behaviour.

When social media policies are analysed through the lens of soft law, their binding nature – or, more precisely, their legal status – is perceived in two different ways. First, the social media policy has a guiding effect on staff use of social media within the organisation. However, a separate issue from the guiding effect is the decision effect. ⁴⁹ This becomes concrete in court when a social media policy is considered part of the relevant norms. The court's decision is not primarily based on the social media policy, but the policy is taken into account as supplementary material when determining the boundary between the permitted and prohibited behaviour of employees, ⁵⁰ for example, in a dispute over the termination of an employment contract. ⁵¹

3. The social media profile of employees: registering on social media and creating a profile

3.1. Work- and employment-related information in staff social media profiles

When a person opens a social media account, it is often opened under their own name, ⁵² and their photo is often added as well. ⁵³ Social media is primarily a personal communication tool, ⁵⁴ a way to remain in touch with friends and produce personal content. However, social media platforms are increasingly used as a means to enhance one's own image as an expert or to support one's own business interests or those of the employer.

Everyone can decide whether they wish to become a social media user, which social media services to use, and how to use them. Furthermore, each person determines the extent of the visibility of their social media profile by choosing the platform and deciding whether the account is completely public or private, i.e., visible only to people chosen by the account holder. However, it is important to remember that social media users should be prepared for the possibility that a message may be shared with a wider audience than intended. This could happen, for instance, if a screenshot is taken and distributed by someone else. ⁵⁵

In their profile, a person can also add information about their education, profession or industry. Educational and professional information can also be provided in general terms, using phrases such as ‘works in the export industry’ or ‘works in healthcare’, or by stating one's profession, such as ‘engineer’, ‘lawyer’ or ‘social scientist’. In particular, experts are often required to mention their education and profession in their profile to highlight their own area of expertise. When acting in this way, it can be argued that a person creates at least a ‘weak’ employer connection through their social media profile. However, a person's expertise can also be of a personal nature, without a connection to a specific employer.

When an expert states the name of their employer in their social media profile, ⁵⁶ it can be argued that, based on this, the employer has an interest in following the expert's social media communications – after all, the employer is identified by name. The employer may also have an interest in restricting the expert's communications, even if they are made through a personal social media account. This may be the case, in particular, if the expert's comments contradict the official view of the employer organisation. However, it is unclear to what extent such restrictions are justified. In addition, the employer may be entitled to require the employee to remove the employer's name from their social media profile and thus sever the connection with the employer – especially if the employee's communications consistently damage the reputation of the employer organisation. It is implausible to argue that an employee always enjoys the right to name their employer in their social media profile as part of their own identification.

3.2. The employer's right to control an employee's social media presence

The increased use of social media in working life raises the question of whether an employer can order its employees to have a social media presence. Although employees commit themselves to working under the direction and supervision of their employer, ⁵⁷ and consequently they must perform their work carefully in compliance with the orders issued by the employer in accordance with its authority regarding the performance of work, ⁵⁸ there are nevertheless limits to such authority. The starting point is that employers can issue valid orders regarding work tasks that the employee should perform according to the employment contract during working hours and with the tools provided by the employer. ⁵⁹

When an employee's work task is to communicate on behalf of the organisation using an organisation account, the employer is entitled to designate the employee as a social media user, and social media is then the employee's work tool. In this case, the employee does not appear on social media using their own name or picture, but rather in the name of a company or organisation. ⁶⁰

In some tasks, such as communication, the employer can require the employee to communicate using their own name and picture but still represent the organisation. However, the employer cannot require the employee to manage the organisation's affairs through their own personal social media account. That would lead to an unjustified restriction of the employee's private life and the protection of their freedom of speech, as employees are entitled to create personal social media profiles without employer connections and decide what kind of social media profiles they maintain in their free time and private lives. In addition, based on their right of direction, the employer cannot, without the employee's consent, create a personal social media account in the employee's name, as this would require handing over their personal data to an external service provider. ⁶¹ The question of the protection of employee privacy cannot be ignored on the premise, for example, that social media is used widely in society.

We cannot provide a simple answer to the question of whether an employer can require an employee to have a social media presence. Case-by-case consideration would be required based on the employee's work tasks, profession and the nature of the activities undertaken by the organisation, amongst other factors.

3.3 The employer encourages the employee to be active on social media

Social media policies may contain a clause under which the employer urges employees to be active on social media: to discuss their work, to network, to acquire information or to highlight their expertise. ⁶² Such clauses are related to the organisation's need to create positive visibility on social media: organisational communication, brand creation, marketing or creating an employer image. In the past, organisational communication was more organisation-driven, but with social media, even organisational communication is performed more personally. ⁶³ Moreover, in certain types of professions (professor, journalist, lobbyist, etc.) and expert work, employees enjoy a wider margin of freedom to define their own working methods. The growing societal importance of social media explains why employers wish to encourage certain professional groups to be active on social media, thereby supporting the employer's goals. For example, journalists are urged to use social media to spark debate. However, this is considered to run the concurrent risk that the person in question does not act impartially on social media, which may affect the credibility of an organisation such as a newspaper. ⁶⁴

In expert work, the issue is not limited to whether employers can order experts to be active on social media. In addition, social media can be a personal tool for experts to build their own personal brand as specialists. This can benefit the employer, but it might also cause problems if these experts’ social media use diverges from the employer's goals. For instance, an investment brokerage company reliant on client commissions might suffer if, on social media, its employees urged clients to favour low-cost index funds and avoid frequent stock trading because of the costs incurred. This is despite the fact that, from an investment perspective, that advice might be appropriate for many clients. Similarly, the professional brands of experts can be so broad and independently definable that it is not always clear, even to the experts themselves, whether it is necessary to be active on social media due to their work and, if so, how they should behave there. ⁶⁵

In cases where employees voluntarily agree to use their personal social media accounts for work purposes, such use may be comparable to a work task. For example, an employee can act as a social media ambassador, employee ambassador, employee advocate, or brand ambassador, whom the employer encourages and instructs to communicate in accordance with the company's goals, in a positive tone about the company, and with the aim of building and supporting the company's brand. ⁶⁶ In such a context, it could be considered that the employer enjoys the right to issue instructions on how the employee should use social media, ⁶⁷ as the connection to the employer's activities is obvious and the employee is aware of it.

4. Can social media be considered a work tool and how should working time be understood in this context?

The multifaceted ways in which social media can be used raise the following questions:

On the basis of the nature of a person's work and professional image, or by some other criteria, could social media be interpreted as a work tool required for the performance of work tasks?

How, if social media use is independent of time and place, should it be evaluated from the perspective of working time?

If an employee's task is to communicate on behalf of the company or organisation using an organisation account, social media can be considered to be that employee's work tool. The organisation account is then parallel to other work tools used by the employee. ⁶⁸ The social media presence of the organisation's top management is primarily connected to their position and tasks, i.e., their professional image. One of the tasks of top management is to represent the organisation and communicate on its behalf, which is why activity on social media can be considered part of their role. ⁶⁹ In addition, several organisations issue communications on current affairs and official events on platforms such as X (formerly Twitter), Facebook, LinkedIn, or Instagram, for instance, so it is necessary to ascertain whether certain types of jobs or professions require employees’ work-related presence and activity on social media.

In certain types of professions, employees present their contact information on the website of the employer organisation (e.g., lawyers, researchers, lobbyists). There may also be a link to the employee's personal social media profile (LinkedIn, X (formerly Twitter), Instagram, etc.). In this case, it can be assumed that the employee has consented to their personal social media account being linked to the employer's website. ⁷⁰ To a visitor, the social media account appears to be an account specifically relating to the employee's work and profession. Thus, how should we understand social media in this context? Is it private or work-related?

In contrast to company websites, social media accounts are set up by employees themselves, who indicate their connection to their employer in their bio by stating their professional duties and the name of their employer. ⁷¹ Nevertheless, in such cases, social media communication can clearly be connected to the person's work tasks and profession. ⁷² Such social media use can involve communicating, networking, or acquiring information. Therefore, one might ask whether social media use is then a necessary condition (e.g., for acquiring information) for the employee to do their work.

Based on the above, one might ask whether, on the basis of the nature of a person's work and professional image, or by some other criteria, social media could be interpreted as a work tool required for the performance of work tasks. If voluntarily following work-related matters on social media is understood as part of the maintenance of one's professional image, ⁷³ not to mention one's work tasks, social media can quite easily be viewed as a work tool. Correspondingly, if the starting point is that social media belongs in the private sphere, it cannot be considered a work tool. Our view is that, currently, it is impossible to draw a clear distinction between social media use as a work tool or a private activity, especially in the case of expert and knowledge-based work.

The starting point in labour law is that the employee performs work tasks during working hours and free time is correspondingly the employee's own time. According to the Working Time Directive (2003/88/EC), ⁷⁴ ‘working time’ is defined based on three criteria:

the worker is working,

the worker is at the employer's disposal,

the worker is performing their activity or duties. ⁷⁵

Since social media use is independent of time and place, it is pertinent to ask whether it can be considered working time. Being on social media, if unrelated to work, may be prohibited during working hours ⁷⁶ but permitted during breaks, i.e., in the employee's own time. ⁷⁷ Such a model applies to traditional work. However, in expert work independent of time and place, it is unclear whether social media use should be interpreted as working time. If the employer requires the employee to follow or react to social media communications actively and irrespective of time, it may be possible for social media activity occurring at home to be interpreted as working time. Moreover, even when the employer does not specifically require social media activity, if an employee must also be ready to react in their free time ⁷⁸ to work-related social media conversations (for example due to their position), ⁷⁹ the time spent following social media could also be interpreted as working time. ⁸⁰ Such a consideration hinges on the question of the extent to which an employee is deemed to be available to the employer and to perform work tasks. On the other hand, if an employee is active on social media privately in their free time, but at the same time follows a conversation relating to their work and possibly participates in it, this is not considered working time. In that case, the employee would not be performing tasks assigned by the employer but could independently decide how to use their time. ⁸¹

The rise of social media and the spread of work that is independent of time and place have challenged the traditional labour law starting point, where work is performed at the workplace during working hours. However, there is no EU-level legislation that guarantees the employee the right to disconnect from digital means of communication, ⁸² such as social media; instead, the law in this regard varies between different countries. ⁸³ Nevertheless, the European Parliament has recognised the importance of the matter and has proposed that it should be regulated by a Directive on the ‘right to disconnect’. ⁸⁴ The Parliament justified its proposal by referring to the blurring of the boundary between work and private life that has resulted from digitisation, which also relates to the protection of the basic rights of employees. ⁸⁵ The Parliament's recommendation has not yet led to legislative action at the EU level. ⁸⁶

5. What kind of topics is an employee permitted to discuss on social media?

5.1. The employee's right to freedom of expression and private life

Freedom of expression is a fundamental right protected in Article 11 of the Charter of Fundamental Rights of the European Union (CFR) and in Article 10 of the ECHR. The CJEU has held that Article 11 CFR is equivalent to Article 10 ECHR, including the case law of the ECtHR. ⁸⁷

Article 10 ECHR recognises that freedom of expression encompasses not only the right to hold opinions, but also the right to receive and impart information and ideas. It is considered a cornerstone of democratic societies and a vital condition for societal progress. ⁸⁸ Freedom of expression serves as a means to inform the public about matters of public interest ⁸⁹ and facilitates the promotion of truth, democracy, and participation. In the workplace, freedom of expression also helps employees to form relationships with others and promotes personal growth. ⁹⁰ Moreover, freedom of expression is regarded as an important value in itself. ⁹¹

The ECtHR has established that freedom of expression extends to expressions that may offend, shock, or disturb. ⁹² This recognition acknowledges that protecting unpopular or controversial speech is essential to maintaining a diverse and open public discourse.

The ECtHR has acknowledged the vital role of the Internet in enhancing freedom of expression. Its accessibility and capacity to store vast amounts of information have revolutionised access to news and dissemination of information. ⁹³ The Internet serves as an unparalleled platform for user-generated content, ⁹⁴ citizen journalism, and the circulation of ideas and information not covered by traditional media. ⁹⁵ The Internet also allows information to be disseminated quickly and instantly, without journalistic judgement or editing.

When discussing the topic, it is also important to note that, in addition to freedom of expression, free-time social media use is part of employees’ protected private life. ⁹⁶ The right to private life is guaranteed by Article 8 of the ECHR, and it is a broad concept covering the physical, psychological and moral integrity of a person. The right to private life also comprises, to a certain degree, the right to establish and develop relationships with other human beings, and today this is often achieved through different social media channels. In addition, it is important to note that the concept of private life also covers activities of a professional or business nature. ⁹⁷ In summary, it can be said that an employee's use of social media can be assessed from both free speech and privacy perspectives. In principle, an employee enjoys the right to behave as they wish in their free time. However, an employer may have an interest in knowing or even controlling, at least to some extent, an employee's behaviour in their free time, because their speech or actions may provoke negative reactions among customers and the audience, thereby adversely affecting the employer's reputation if the employer can be linked to that employee. ⁹⁸ Thus, we arrive at the crucial question of the extent to which citizens’ freedom of speech can be curbed because they are also workers – which, moreover, is a status shared by the majority of the population. This assessment is made primarily on the basis of labour law standards, but the employer must not apply such standards in a way that violates the employee's fundamental and human right to freedom of expression or the right to privacy. ⁹⁹

5.2. Potentially linked to the employer: all tweets are personal opinions

Due to the above, the fact that an employee's presence on social media can be linked to the employer not only creates benefits but also poses risks. An employee's social media behaviour can hinder business or damage the organisation ¹⁰⁰ if the content shared on social media and the values and goals of the employer organisation diverge. Consequently, social media policies often stress that what a person writes or shares on social media can be linked to their employer. ¹⁰¹

Since employees can also be linked to their employers in unintended contexts, employees can specify in their own social media profiles how and for what purposes they primarily use social media. For example, the statements on X (formerly Twitter) such as ‘All tweets are personal opinions’, ‘Retweets ≠ endorsements’, and ‘Retweeting does not always mean agreement, but like does’ are a means of emphasising the personal nature of social media, even if the person names their employer in their profile. Such caveats can be seen as a clarification of the role of social media, especially if the person in question uses it for both work and private life. These caveats can also be seen as an effort to clarify potential issues of responsibility if a comment or an opinion expressed by an employee on social media poses a risk to or harms the employer. The person in question, therefore, attempts to break their connection with the employer and emphasise the personal nature of social media, for example, by mentioning matters unrelated to work in their profile, such as hobbies or other interests, thus highlighting the separation between work and free time. ¹⁰²

Social media policies often provide that there are certain issues on which employees are not free to comment. For example, in listed companies, such matters can include financial information or the company's future prospects; ¹⁰³ correspondingly, in hospitals, the importance of confidentiality and compliance with professional ethical guidelines are emphasised. ¹⁰⁴ Moreover, criticism of the employer or colleagues on social media is usually forbidden. However, the situation may be interpreted differently if the criticism targets significant shortcomings or serious problems that the employer has not addressed, despite being alerted to them. Otherwise, it is understandable that criticising one's employer and colleagues is often prohibited in social media policies. ¹⁰⁵

In their social media policies, employers often define who possesses the right or, in other words, the authority to comment officially in the name of the organization, by stating that only persons specifically designated by the organisation may speak on behalf of the organisation or discuss work-related matters. ¹⁰⁶ In practice, this means the top management of the organisation or employees whose work is in communications.

Social media policies can also specify that if an employee comments on the company's industry or activities relating to the company, they must disclose their link to the employer in their social media profile. ¹⁰⁷ Moreover, employers can aim for communicational transparency, but also strive to emphasise that the opinions expressed by individual employees are their own, ¹⁰⁸ even if the employer's name is mentioned in the profile.

5.3. Employees’ duty of loyalty vs the employer's duty of tolerance in the context of social media use

An employee's duty of loyalty is one of the key criteria for evaluating employee behaviour. For example, company social media policies can provide that the employee must act loyally towards their employer, ¹⁰⁹ which means, for instance, avoiding inappropriate social media activity that harms the employer. However, the duty of loyalty is a rather broad and abstract concept ¹¹⁰ based on contract law. For example, in Chapter 3 § 1 of the Finnish Employment Contract Act (55/2001), the employee's duty of loyalty is expressed thus: ‘In their activities, employees shall avoid everything that conflicts with the actions reasonably required of employees in their position’.

The duty of loyalty can also be understood as a flexible norm, the exact content of which is determined by a dialogue between legal sources and other material applicable to the situation in question. Here, social media policies created by companies can contribute to concretising the employee's duty of loyalty specifically in connection with interpretation issues relating to social media use.

However, the employer cannot restrict the employee's freedom of speech – which is protected as a fundamental and human right – more than the human rights treaties and the fundamental rights system allow. In particular, broad and general restrictions or harsh consequences for exercising freedom of speech, such as termination of employment, may violate this right. ¹¹¹ For example, in Herbai v. Hungary, ¹¹² the applicant had been working in the human resources department of a bank while also contributing to a knowledge-sharing website containing general articles about HR practice. According to the employer's code of ethics, the applicant was obliged to refrain from disclosing any information, whether formally or informally, regarding the operations and activities of his employer. While the employee did not reveal any wrongdoing or business secrets, he published, with a colleague, some general information about his employer. His contract was subsequently terminated for breaching the employer's confidentiality standards. The bank contended that the provision of educational services in human resources management by the employee had negatively impacted its economic interests. Additionally, as the employee held a position that granted access to sensitive information, the bank argued that publishing such information had interfered with its business interests. The ECtHR found a violation of the employee's freedom of expression and considered the following elements to be relevant: the nature of the speech in question, the motives of the author, the damage, if any, caused by the speech to the employer, and the severity of the sanction imposed. A fair balance had not been struck between the employee's right to freedom of expression and the employer's right to protect legitimate business interests. It has been established that the duty of loyalty also extends to the employee's free time, at least to some degree. This is justified because, in terms of the potential damage to the employer, it is irrelevant whether the disloyal act is committed during working hours or free time, although engaging in disloyal activities during working hours can be a factor that increases the reprehensibility of the act. ¹¹³ In addition, due to the current increase in remote work and flexible working, it is not always possible to draw a clear distinction between working time and free time, especially when employees may be active on social media several times during the working day.

The employee's duty of loyalty has often been assessed in the context of whistleblowing cases, i.e., in situations where employees reveal wrongdoing or misconduct in the workplace. Regarding the freedom of expression of civil servants, the ECtHR has stated that Article 10 applies to the workplace in general. ¹¹⁴ Furthermore, an employee's signalling of illegal conduct or wrongdoing in the workplace (whistleblowing) may enjoy protection in certain circumstances. ¹¹⁵ This is applicable both to public sector employees and private law employment relationships. ¹¹⁶ However, employees also ‘owe to their employer a duty of loyalty, reserve and discretion’. ¹¹⁷ According to the ECtHR, that duty may be more pronounced in the case of civil servants and employees in the public sector, but employees in private law employment relationships are also bound by that duty. ¹¹⁸ Nonetheless, the greater duty of loyalty expected of public servants can be questioned. After all, in general, the disclosure of information about the management of the public sector, which is funded by taxpayers, is in the public interest. By contrast, a similar interest does not exist regarding private employers, although other factors might also be relevant here.

The ECtHR has established criteria that are applicable when evaluating an employee's freedom of expression and duty of loyalty. These criteria concern the following: public interest in the information disclosed, the applicant's potential access to alternative channels for making the disclosure, the authenticity of the information disclosed, the question of whether the applicant has acted in good faith, damage to the employer, and the severity of the sanction imposed on the employee. ¹¹⁹ In a recent Grand Chamber judgment (in a 12-5 decision), the ECtHR found a violation of an employee's freedom of expression in a so-called whistleblower case where an employee (Mr. Halet) had leaked confidential documents to the media from a private sector employer concerning the tax practices of multinational companies. The Court stated that there are specific features in a work-based relationship that must be taken into account. While employees are bound by a duty of loyalty to their employer, weight must also be given to the position of economic vulnerability that employees occupy vis-à-vis the employer. ¹²⁰

The Court concluded that ‘after weighing up all the interests concerned and tak[ing] account of the nature, severity and chilling effect of the applicant's criminal conviction’, the interference with Mr Halet's right to freedom of expression, in particular his freedom to impart information, was not ‘necessary in a democratic society’. Four judges claimed, in their dissenting opinion, that the majority had interpreted the concept of ‘public interest’ too broadly. The majority had divided the information Halet had revealed into three categories that may legitimately be revealed by a whistleblower. Those were unlawful conduct, reprehensible but legal acts, and information that sparks debate. The public interest in disclosure diminishes according to whether the information falls into the first, second or third category. The minority of four judges claimed that it was difficult to determine which acts were reprehensible while remaining legal, and that in reality, any information could fall into the category of ‘sparking debate’. Furthermore, they asserted that the introduction of this new criterion could remove protection from professional confidentiality relating, for example, to a person's health or assets in a bank. According to the minority, legal certainty was also set aside.

Heinisch v. Germany ¹²¹ is also a significant case on employee freedom of expression. In that case, the ECtHR examined several key criteria to determine whether the applicant's dismissal was justified, or whether it violated her right to freedom of expression under Article 10 of the ECHR. The first criterion was the public interest: the Court emphasised the importance of the information disclosed being of public interest. In this case, the information concerned shortcomings in the provision of institutional care for the elderly by a state-owned company, which is undeniably a matter of public concern. Second criterion was internal reporting: the applicant had made numerous attempts to inform her superiors about the problems internally before resorting to external whistleblowing. This demonstrated that she had tried to address the issues through appropriate internal channels first. Regarding the authenticity of information, the Court found that the information disclosed was authentic, meaning it was accurate and based on factual evidence. The applicant had also acted in good faith, and thus her primary motive was to address and rectify the issues, not to cause harm to the employer. There was no indication of any malicious intent. The applicant had also tried other means to overcome the problems at her workplace before resorting to whistleblowing. The Court also did a balancing exercise, where it weighed the public interest in being informed about the shortcomings in the provision of care against the interest of the company in protecting its business reputation and interests. It concluded that the public interest outweighed the company's interest in this case. Regarding the severity of the penalty imposed on the applicant, the Court noted that her dismissal not only had negative repercussions on her career but also had the potential to create a chilling effect on other employees. This chilling effect could discourage other employees from reporting similar issues, thereby hindering transparency and accountability. The Court concluded that the applicant's dismissal without notice was disproportionate, and the domestic courts had failed to strike a fair balance between protecting the employer's reputation and the applicant's right to freedom of expression and there was a violation of freedom of expression.

This ruling reinforced the protection of employees who report misconduct or wrongdoing in the workplace. It underscores the importance of ensuring that individuals who disclose information of public interest are not penalised disproportionately. The case highlights the need for legal frameworks that balance the interests of employers and the fundamental rights of employees, particularly in contexts where the public interest is at stake.

In conclusion, the ECtHR has set out clear criteria for employee whistleblowing, but the manner in which they will be applied in each specific situation is not always clear.

6. Social media at the intersection of work and private life: challenging traditional labour law concepts and demanding more predictability

This article has outlined the role and use of social media at the intersection of work and private life. The hybrid role of employees in the context of social media highlights the evolving landscape of work and the challenges it poses to traditional labour law approaches. A hybrid role is created when a person adds work-related information to their personal social media profile, such as their profession and industry, writes about work-related matters, or names their employer. This hybrid role may involve employers encouraging their personnel to highlight their own skills on social media and, in this way, to market not only their own expertise but also the expertise and brand of the employer organisation. The employee's hybrid role can thus arise at the initiative of either the employee or the employer, and the resulting connection to employer can be either strong or weak.

The stronger the employer-employee relationship, the more significant the employer's interest and right to intervene in the employee's use of social media. The employment contract and the employee's obligations arising from it, as well as the codes of conduct and social media policies put in place by the employer, determine the extent to which the employer can restrict the employee's freedom of expression. Freedom of expression and the protection of private life as fundamental and human rights set the broadest limits on the restriction of employees’ rights. When deciding on sanctions against an employee for social media use, such as a warning or termination of employment, the employee's right to freedom of expression and private life must be taken into account in the decision-making process. This must be done in line with the case law of the European Court of Human Rights. The consideration of human rights must be genuine and real and must not entail just a formal reference to them. ¹²² If sanctions are imposed, they must be proportionate to the offence committed and the damage caused to the employer. Since there is currently limited regulation of social media, company-specific social media policies have emerged to regulate this unregulated or ‘imprecisely’ regulated space. However, we believe that the novelty of the phenomenon must not lead to the abandonment of certain fundamentals: the protection of the employee via labour law, and the status of freedom of speech and the right to private life as basic and human rights. The issue has been approached in the legal literature and praxis from the perspective of the contractual duty of loyalty. The requirements set by the duty of loyalty are interpreted on a case-by-case basis, taking into account the factors mentioned in section 5.3 above. The danger here is the ‘chilling effect’, i.e., the fact that due to the fear of possible sanction (such as termination of the employment relationship), employees do not dare to discuss issues of general significance.

We argue that in the future, it will be necessary to consider whether, in order to improve the legal protection of the employee and the employer, social media use in working life should be regulated more precisely in legislation. A trend in this direction can already be observed in the EU's recent legislative projects, for instance, the right to disconnect initiative, which has been a response to phenomena arising from the development of technology. On the other hand, the flexibility of the duty of loyalty and, for example, the decisions of the European Court of Human Rights on the interpretation of this duty and employee's freedom of speech already provide good guidelines for assessing different situations and enabling different factors to be taken into account. The problem with detailed regulation would be its rigidity and casuistry.

Furthermore, various labour law plans, such as the Equality Plan, and the history of their development could provide an example. Why could social media policies not be company-specific norms based on law and drawn up in cooperation with employees? In that way, minimum protection, employee participation, company-specific special features and legal protection could all be secured more clearly and effectively than is the case today.

The hybrid role of the employee exemplifies the legal issues that have arisen as a result of the diverse use of social media, the development of employers’ social media policies, as well as changes in work tasks and working conditions. Further research is required to explore the multifaceted aspects of social media use by employees. The hybrid role of employees in the realm of social media calls for nuanced understanding, legal adaptations, and a balanced approach that safeguards both the rights of employees and the interests of employers in an evolving digital landscape at the intersection of work and private life.