Use of social media at work: what regulations?

The power of social media has continued to assert itself since its inception, both for personal and professional use. As a source of opportunities, companies regularly utilize it: promoting their image, recruiting, publishing technical content, and internal messaging.

Employees, personally and deeply integrated into their communities through these social tools, do not consider pausing their social media participation during work hours at their workplace. In this regard, while a reasoned and limited use may not pose a problem, repeated usage can quickly become a source of conflict. What use of social media is acceptable in the office? What are the limits?

Personal Use of the Internet at the Office: A Right for Employees?

The Labor Code establishes the principle that no one can impose restrictions on individuals' rights and freedoms that are not justified by the nature of the task at hand or proportionate to the intended goal (Article L. 1121-1 of the Labor Code). However, an employer who provides an employee with an internet connection does so primarily to enable them to perform their work, not to allow them to research their next vacation destination or book a flight. While employers may tacitly accept private use within reasonable limits, this is conditional on it remaining reasonable and justified.

Personal use of the internet during work hours must therefore remain exceptional. In this regard, case law has already weighed in: the Court of Cassation has ruled that an employee who uses the company's internet connection excessively (in this case, the employee accumulated 41 hours of internet use for non-professional purposes over a month) fails to meet their obligations and may be subject to dismissal (Social Chamber, March 18, 2009, No. 07-44.247), just as a female employee who was found to have accessed non-professional websites 10,000 times in 18 days during working hours (Cass. soc. February 26, 2013, No. 11-27.372).

To determine whether internet use is abusive, several criteria may be considered by judges, such as:

• Frequency and duration of connections,
• Whether the connections occurred during or outside working hours, and
• The impact on the company's operation or the work performed by the employee.

Everything here is a matter of proportion.

What Control Over Personal Connections Can Employers Have?

To promote and disseminate good practices for these uses, employers are advised to regulate the use of company equipment and internet connections through internal regulations or an IT charter. To avoid any temptation from employees to visit sites unnecessary for their work, the employer may also block or limit access during certain hours. This is especially relevant for social media, which, except for some professions where they may serve as actual work tools (like recruitment consultants), are mainly used by employees for personal purposes.

Limited Control Over the Use of Tools

It is also important to remember that, within the framework of their managerial authority, employers can impose controls over the use of tools provided to employees for work purposes. This control, which can be carried out without the employee being present, allows the employer to check internet connection history without violating the individual's privacy. Indeed, since personal use occurs during work hours and using company tools, connections are presumed to be professional in nature (Cass. soc. July 9, 2008, No. 06-45.800). However, the employer's managerial power is not absolute. For instance, they are not allowed to check an employee’s Facebook account, even using a company phone (Cass. soc. December 20, 2017, No. 16-19.609).

Freedom of Speech: A Restricted Right

While the time spent online can be monitored, the content is not free from restrictions. An employee's freedom of speech must remain within the limits of loyalty and confidentiality obligations. An employee cannot say or write anything, damage their employer's reputation, or disseminate confidential information. However, courts distinguish between comments made in private or public spheres. Only posts made on public social networks can be subject to sanctions. Freedom of speech prevails as long as the comments are made in a private context. In this sense, the Court of Cassation has already clarified that offensive comments made by an employee on their Facebook account, accessible only to a closed group of fourteen approved people, constitute private communication and therefore do not constitute gross misconduct (Cass. soc. September 12, 2018, No. 16-11.690).

Time loss, reduced productivity, lack of professionalism, or damage to the company’s reputation—social media, if not controlled, can become a threat. The challenge for employers lies in monitoring digital spaces where employees’ varied interests coexist and where the boundaries between professional and personal life are not always easy to establish.

As experts in labor law, RSM can assist you in raising awareness among your employees about the risks of social media by drafting internal regulations or an IT charter.