SNSs can have an important effect on working hours. The main issue that they represent is that a huge number of employees spend their working hours surfing on SNSs instead of working – seriously compromising the interests of the employer, who lawfully expects the employee to work during working hours. It was already demonstrated that one of the employee’s main obligation is to perform work: this obligation can be violated by the personal use of SNSs during working hours.
An employment relationship necessarily comes with the limitation of certain rights and the autonomy of the employees,1303 meaning, for example, that the employee is not free to spend working time as he/she wishes. It is the very nature of employment that the employee must perform work under the subordination of the employer.1304 It follows from the main labour law principles that employers have the contractually based right to determine the work and to control whether the employees perform their contractual obligations.1305
In Title 2, emphasis will be put on the examination of using SNSs at the expense of working hours, with the main focus on the traditional (typical) employment contract.1306 Therefore, the assessment of the content of SNS posts is not as relevant as in the case of examining the employees’ exercise of freedom of expression or behaviour outside working hours: what is important is that the employee used SNSs during working hours. Although it is possible to publish excessive criticism, libel or harm the employer’s legitimate interest in other ways during the working hours as well, these issues will be further discussed under Title 3.
The starting point is that the employer has the right to regulate the personal use of the devices provided by him/her and has the right to monitor whether the employee complies with his/her instructions.1307 One of the employees’ main obligations is the obligation to perform work during working hours, while the employer is entitled to monitor whether employees comply with that obligation.
In French law, the notion of employment contract itself refers to employees’ obligation to work.1308 The employee is obliged to perform the work for which he/she has been hired,1309 and arising from the intuitu personae nature of the employment relationship, he/she has to do it in person.1310 In addition, he/she is subject to a requirement of availability: he/she is obliged to be at the employer’s disposal and follow his/her orders without being able to freely carry on his/her personal affairs.1311 The employee also has to respect working
1303 Kardkovács 2012. p. 40.
1304 Cour de cassation, 22 juillet 1954 (Bull. civ. IV, no 576) referred to in: Le Lamy social 2019
1305 Hendrickx 2002. p. 97.
1306 Although the case of the bring your own device phenomenon will be addressed as well.
1307 WP29: Working document on the surveillance of electronic communications in the workplace, 2002. p. 24.
1308 As an employment contract is “a convention according to which a person engages in performing work for another person under its subordination for remuneration.” Source: Cour de cassation, 22 juillet 1954 (Bull.
civ. IV, no 576) referred to in: Le Lamy social 2019
1309 Ouaissi 2017. p. 141.
1310 Favennec-Héry – Verkindt 2016. p. 421.
1311 Article L3121-1 of the FLC
hours and follow the instructions of the employer.1312 From the employer’s perspective, it is a confirmed principle in jurisprudence that the employer has the right to control and monitor the activity of employees during working hours.1313
Similarly, in Hungarian law, the very definition of employment contract refers to the employees’ obligation to perform work,1314 and the employees’ other obligations give further guidance on the substance of this obligation.1315 The employees’ two most important obligations are to perform work and to be at the disposal of the employer during working hours.1316 The employee should not just show up at the workplace, he/she has to spend his/
her whole worktime performing work of high quality and quantity. If the employee is present at the workplace but spends his/her time, for example, reading or sending instant messages instead of performing work, the employer is entitled to terminate his/her relationship.1317 On the other side, the employer is entitled to give instructions regarding the organization of work1318 and has the right and obligation to control employees’ work and maintain work discipline: as a consequence, he/she may apply detrimental legal consequences in the case of the employee’s breach of obligation.1319 Therefore he/she can monitor – respecting the requirements set by Sections 9–11/A of the HLC – whether employees respect their obligations and spend their working time performing work.
Although today it is a well-established principle that “[w]orkers do not abandon their right to privacy and data protection every morning at the doors of the workplace[,]”1320 drawing the exact lines of these rights can pose questions. Because of the subordinate relationship between the employees and the employer, these rights have to be balanced against the employer’s legitimate economic interests. Regulating and monitoring the use of SNSs can concern the employee’s right to privacy, while the monitoring necessarily comes with the processing of personal data and falls under the scope of the data protection legislation, meaning that the data protection requirements aiming to ensure the employees’
right to personal data protection shall be respected during such monitoring. Title 2 will examine whether and to what extent can the employer interfere with employees’ personal lives through regulating the personal use of social media during working hours and how is it possible to monitor compliance?
1312 Ministère du travail, de l’emploi, de la formation professionnelle et du dialogue social 2015. p. 90.
1313 Cass. soc., 14 mars 2000, N° 98-42090; Cass. soc., 4 juillet 2012, N° 11-30266; Cass. soc., 18 mars 2008, N° 06-45093
1314 Subsection (2) of Section 42 of the HLC: “Under an employment contract:
a) the employee is required to work as instructed by the employer;
b) the employer is required to provide work for the employee and to pay wages.”
1315 Subsection (1) of Section 52 of the HLC: “Employees shall:
a) appear at the place and time specified by the employer, in a condition fit for work;
b) be at the employer’s disposal in a condition fit for work during their working time for the purpose of performing work;
c) perform work in person, with the level of professional expertise and workmanship that can be reasonably expected, in accordance with the relevant regulations, requirements, instructions and customs[.]”
1316 Gyulavári 2013. p. 254.
1317 Gyulavári 2013. p. 257.
1318 While the employee must also perform work according to the employer’s instructions. Source: 7001/2005.
(MK 170.) FMM-PM együttes irányelv
1319 Gyulavári 2013. p. 249.
1320 WP29: Working document on the surveillance of electronic communications in the workplace, 2002. p. 4.
Title 2 will examine the assumption that in most regards, the personal use of SNSs during working hours can be adequately addressed through the already existing rules relating to the monitoring of Internet and e-mail use. Neither of the two labour codes or the data protection acts regulate specifically employee monitoring jointly with SNSs. Therefore SNSs must be assessed in the light of the rules laid down in the labour codes relating to employee monitoring in general.1321 Also, the practice of the courts and the data protection supervisory authorities elaborated the detailed conditions of certain types of monitoring – amongst them the monitoring of Internet and e-mail.
As social media and SNSs are Internet based platforms which enable to post certain content and to communicate with other users, the rules relating to Internet and e-mail monitoring are adequately applicable to employees’ use of social media during working hours. However, SNSs have certain characteristics that make it necessary to enumerate the special issues raised by them, in order to be able to judge whether already established rules need adjustments and if yes, in what regards. A great difference compared to e-mail monitoring is that while sending e-mails usually necessarily comes with the job (meaning that the employee might use the same platform for work and personal purposes), as a main rule, messaging on SNSs is usually not part of a job at all and is purely personal. Therefore, while the access of an e-mail account can be associated with working as well, accessing an SNS (regardless of whether it is for surfing or communicating) supposes personal activity.
A double approach is adopted, as it must be taken into consideration that when an employee surfs SNSs (e.g. the Facebook or Instagram newsfeed), this activity is like surfing the Internet; whereas when using the instant chat messaging services incorporated into these platforms (e.g. Facebook Messenger, Instagram Direct), more emphatic similarities with the regulation of the use and monitoring of e-mail can be observed.
As the use of SNSs is based on the use of the Internet, the already elaborated rules of monitoring employees’ personal use of the Internet are applicable to the personal use of SNSs as well. The already presented general rules of monitoring are adequately applicable to Internet monitoring as well. Both French and Hungarian legal systems have already addressed the question of monitoring employees’ use of the Internet and e-mail.
In French law, the CNIL’s standpoint is that the employer is entitled to regulate the use of the Internet and e-mail by imposing limitations on its personal use for the purpose of guaranteeing the security of the network and preventing abusive personal use. However, certain personal use is usually tolerated if it is reasonable and does not affect security or productivity.1322 At the core of the regulation a presumption is found: e-mails are presumed to be of professional nature, unless the employee obviously indicates the personal character of the messages – imposing limitations on the employer’s right to monitor them, giving room for the employee’s right to respect for private life.1323 The employer cannot have access to those messages even if the personal use was forbidden, unless authorized to do so by a judge.1324 However, the employer can freely access professional e-mails:1325 he/she
1321 Article L1121-1, and Articles L1222-2 to L1222-4 of the FLC and Sections 9–11/A of the HLC
1322 CNIL: Les outils informatiques au travail. Fiches pratiques: Travail & données personnelles, 2018
1323 Cass. soc., 30 mai 2007, N° 05-43102. “However, the correspondences sent or received by the employee at the workplace are presumed to have a professional character, so the employer may open them without the presence of the concerned employee, except if they are identified as personal.” Source: Cass. soc., 11 juillet 2012 n˚ 11-22.972
1324 La Rédaction D.O. 2013. p. 3.
1325 CNIL: Guide pour les employeurs et les salariés. Les guides de la CNIL, 2010. p. 19.
can have access to them even without the employee’s presence.1326, 1327 In contrast, in the case of Internet connections, no such exception exists: Internet connections and the sites visited are presumed to be professional so the employer can have access to them.1328, 1329
In Hungary, the legal situation is slightly different as, due to the amendment of the HLC in 2019, a provision was added regulating explicitly the use of electronic equipment provided by the employer.1330 The HLC now stipulates that unless the parties agreed otherwise, the employee can use the equipment provided by the employer exclusively for professional purposes. It also adds that during the monitoring of such use, the employer can only process data in relation to the employment relationship. The amendment corresponds with the prevailing view in doctrine related to the legislation prior to this amendment, arguing that the employer is free to decide whether he/she allows the personal use of the Internet, and if yes, to what extent.1331 Then, the extent of the monitoring will be highly dependent on whether the employer has allowed personal use or not: in Hungarian law as well, more extensive protection is afforded to personal communication/use of the Internet.
The case of SNS use during working hours will be examined by taking a double, privacy-data protection/regulation-monitoring approach: attaching privacy to the regulation of SNS use, and data protection to the monitoring of compliance with the regulation. First, in Chapter 1 it will be addressed to what extent employees’ right to private life is extended to the workplace, namely: do they have the “right” to use social media during working hours and how can the employer regulate or prohibit their use? Then, in Chapter 2 it will be discussed what data protection requirements must be enforced during the monitoring of whether employees comply with the employer’s regulation. Therefore, regulation and monitoring will be treated separately.