Switzerland Update: Misuse of social media by employees

Disinformation and hate speech on social media is increasingly becoming a social problem. But what should be done when employees jeopardise the employer’s reputation with their behaviour on social media?

Rules for the use of social media

By law, employees have a duty of loyalty to their employer, according to which they must safeguard the employer’s legitimate interests in good faith. In particular, the employee must refrain from doing anything that could damage the employer’s business or reputation.

It is advisable for companies to regulate how employees use social media (either separately or as part of a more comprehensive set of personnel regulations). In this way, grey areas can be avoided and clear rules can be established, at least as far as work activities are concerned.

Workplace vs. private life

While conduct at the workplace or during the performance of work is largely determined by the employer and the use of social media can also be prohibited altogether, the employer generally may not impose any regulations on the employee’s private life. The employee’s freedom of personality permits the free development of his or her personality, provided this does not violate the law or the rights of others. Furthermore, every employee has the right to freedom of expression. However, these fundamental rights are not unlimited. The interests and rights of the persons involved must be weighed against each other. In particular, activities in the private sphere are not permitted if they infringe the legitimate interests of the employer.

Crossing boundaries on social media

In addition to insults or hostility towards the employer or colleagues on social media, the publication of confidential information in connection with the employment relationship is also prohibited. In the case of irregularities in the workplace, whistleblowing in public may be permitted under certain circumstances, but generally only as a last resort, if first the employer and then the competent authority have not responded to a justified complaint.

Whether there has been an unauthorised crossing of boundaries must be determined on a case-by-case basis, taking into account all the interests involved. For example, employees are in principle free in their private lives to make themselves ridiculous with drunken party photos or to spread absurd conspiracy theories. However, the balance of interests can be tipped in particular if, for example, behaviour at work or at company events is depicted, possibly even against the will of the colleagues depicted.

The industry involved and the function of the offending employee also plays a role. The behaviour of the CEO reflects more quickly on the employer than if a trainee goes overboard. Vaccine-sceptical statements are more sensitive at a vaccine manufacturer than elsewhere. Satanist statements by a priest would probably not be seen too favourably by his church either, and rightly so.

In the case of criminally punishable behaviour (e.g. racially discriminatory statements) on social media towards third parties, a point may well be reached where the employer’s interests are already violated simply by being associated with such a person. 

Control options and sanctions

Employers may only process personal data about their employees to the extent that it is related to the workplace. In principle, employers are therefore not allowed to search private social media platforms (e.g. Facebook, Instagram, Twitter, Snapchat, Tiktok) for information about their employees, unless they are professionally active there (e.g. a “social media manager”). The situation is of course different for professional platforms such as LinkedIn or Xing, whose professional orientation implies a workplace reference.

However, anyone who is friends with the boss or colleagues on Facebook should not be surprised if boundary violations become known to the employer; these reports are usually also actionable due to their detrimental effect on the employer’s interests.

If violations of boundaries become known, the employer can impose proportionate sanctions depending on the severity of the breach of the duty of loyalty. For example, measures ranging from instructions to warnings to termination without notice are conceivable.

Conclusion

Employees have to protect the legitimate interests of the employer in good faith even in what is actually their private conduct on social media. If this duty of loyalty is breached, the employer can impose proportionate sanctions. However, from a legal point of view, the balancing of interests is often very delicate, as in most cases weighty (fundamental) rights of the parties involved have to be weighed against each other.

If you have any questions on this topic, please do not hesitate to contact our employment law team at any time.

By Marc Ph. Prinz & Gian Geel, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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