Nowadays, people are accustomed to live their lives in different dimensions, one of them is at a digital level through social networks.
Even this sphere is protected by the right to privacy, regulated in Article 24 of the Political Constitution:
"...The right to privacy, enshrined in Article 24 of the Political Constitution, implies a shield of protection for the private life of citizens, as has been stated in repeated jurisprudence by the Chamber. Privacy consists of those phenomena, behaviors, data, and situations of a person that are typically not exposed to the knowledge of strangers and whose knowledge by them may morally disturb the individual by affecting their modesty and discretion, unless that person consents to such knowledge. While it cannot be denied that what happens within a citizen’s home is private life, it may also extend to what happens in offices, friends' homes, and other private premises in that sphere. In this way, the constitutional rights of inviolability of the home, private documents, and communications exist to protect this privacy in general..." (Resolution 2009-03873 of the Constitutional Chamber at 16:37 on March 10, 2009)
However, this protection of privacy often leads people to believe that everything they post on social networks belongs to their private sphere, which is not entirely true. In this regard, the Courts of Justice have established a clear distinction between communications made through social networks via private channels and public access posts, with only the former being protected by the right to privacy. Even the second ones may be subject to disciplinary proceedings if the persons involved in the communication provide them to third parties.
“In the present case, it is observed that the person who provided the images and conversations from the WhatsApp group to the disciplinary procedure was not only a member of the chat but also the victim of the alleged harassment, for which no judicial order is necessary, as explained above. Note that the situation would be different if it involved a third party outside the WhatsApp group, which, if applicable, could be protected before this Court, as it has been upheld on other occasions (see ruling 2019-015232 at 9:20 a.m. on August 16, 2019)”(Resolution 2019-18350 of the Constitutional Chamber at 09:30 on September 24, 2019).
Now, being clear that the right to privacy has limits, and that in case of transgressing them the person may face consequences for his publications, we must transfer this idea to the labor sphere. In this regard, Article 81 of the Labor Code establishes as grounds for dismissal without employer's liability:
c. When the worker, outside the workplace and during non-working hours, engages in insult, defamation, or physical aggression against their employer or the employer's representatives, as long as these acts were not provoked and result in an impossible situation for maintaining harmony and cooperation for work;
l. When the worker commits any other serious breach of the obligations imposed by the contract. It is understood that whenever the dismissal is based on an act also penalized by criminal laws, the employer retains the right to initiate the corresponding actions before common law enforcement authorities.
Therefore, the posts made by employees through their social networks can lead to disciplinary proceedings and even dismissal. It is important to note that it is not necessary for the employee to engage in insults or defamation against their employer; it is sufficient that they carry out acts or make statements that negatively affect the company’s image.
“The Chamber considers that, regardless of the fact that people have freedom of expression (protected by Articles 28 and 29 of the Political Constitution, Article 13 of the American Convention on Human Rights, and Article 19 of the Universal Declaration of Human Rights), it is also necessary to weigh the fact that employees are subject, within the development of the employment relationship, to behavior based on equity and good faith as parameters that determine the personal provision of services to the employer, and this should also extend to other individuals connected to the employer’s business activity. Currently, the development of social networks allows employees to make statements or opinions that can create a false sense of privacy or anonymity, potentially leading them to post opinions that affect the reputation and interests of their employer and the employer's right to freedom of enterprise and trade. In such cases, the employer may exercise their disciplinary authority. In this case, the employee identified herself on social networks as an employee of the company in question, appeared wearing the work uniform, and tagged her workplace. Thus, by posting her opinions on the Facebook platform, she was linked not only to her employer but also to the cooperative association owning the restaurants. For this Chamber, it has been duly proven that the comments posted by the employee online negatively impacted the interests of the company in question, which constitutes an objective ground for dismissal”(Resolution 1115-2022 of the Second Chamber of the Supreme Court of Justice at 10:10 a.m. on May 18, 2022, emphasis not in the original).
However, before proceeding with a dismissal without employer's liability, the employer must assess in accordance with the principle of proportionality whether the employee’s post is serious enough to justify the disciplinary measure. In doing so, they must consider the reach of the post, the severity of the comments made, whether the individual can be linked to the company, and finally, whether what the employee expressed is factual, which could justify the post as a means of complaint.
In this regard, the Second Chamber of the Supreme Court of Justice has also noted:
“There is no doubt that what the worker reported... to the newspaper La Extra regarding salary deductions was not false; in reality, the company in question was acting illegally. In its response to the lawsuit, the company argued that the worker's actions violated the principle of good faith in the employment contract, as he approached a news outlet and lied, but the fact is that the reported events were occurring. It should be noted that the normal and legally authorized mechanisms for labor rights claims are through the administrative instance, by filing a complaint with the General Labor Inspection; or directly through the judiciary. However, given the well-known delays in judicial processes, it is reasonable to understand that workers, when faced with a flagrant violation of a fundamental right such as salary, as was the case here, may resort to other legally permissible means that serve as a form of pressure to seek recognition of that right. This was the purpose of the news article published on June 17, 2005, in La Extra newspaper (folio 107)."(Resolution 1031-2010 of the Second Chamber of the Supreme Court of Justice at 9:35 a.m. on July 21, 2010).
In summary, comments and behaviors made by employees outside of the workplace, even through social networks, can lead to disciplinary proceedings and even dismissal. However, the proportionality of the measure must be evaluated before taking any disciplinary action.
At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.
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