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The phenomenon whereby employees use the online environment or other public spaces to express criticism of their employer, the management team, or their colleagues—sometimes accompanied by the disclosure of confidential information and inappropriate speech—is increasingly common and raises serious ethical and legal issues.
It is true that employers cannot be shielded from any form of criticism coming from employees or former employees. However, it is essential to distinguish between legitimate critical expressions and those manifestations that may become damaging to the company.
As employees or former employees choose to voice their dissatisfaction in the public space—using social networks, forums, or media—rather than addressing it directly to their employers, freedom of expression in the workplace context is increasingly the subject of analysis in case law, both in other European legal systems and at the level of the European Court of Human Rights.
Freedom of expression – a guaranteed right, but not an absolute one
The European Court of Human Rights (ECHR) has consistently emphasized that freedom of expression is one of the foundations of a democratic society. This freedom is not limited only to well-received or harmless opinions, but also extends to ideas that may offend, shock, or disturb.
Nevertheless, the European Convention on Human Rights (the Convention) allows justified restrictions, provided that they:
At the national level, the Romanian Constitution (Article 30) recognizes freedom of expression as inviolable, but expressly prohibits defamation, incitement to hatred or violence, as well as violations of human dignity or private life. The Civil Code (Articles 70 and 75) supplements this framework, underlining that the good-faith exercise of this right must not infringe upon the rights of others.
The anatomy of a potentially defamatory statement
It is common for employees or former employees, dissatisfied with the employment relationship, to post information about the employer, the employment relationship, or other employees on various online platforms. Such statements may be expressed either in offensive and insulting language, or in an apparently neutral manner that nonetheless harms the employer’s image by presenting shocking or scandalous information.
When analysing such situations in light of Article 10 of the Convention, it is necessary to draw a clear distinction between defamatory accusations, insults, and purposely offensive words, on the one hand, and other types of statements, on the other. Article 10 does not protect defamatory statements, and the person making them may be held liable.
With regard to other types of statements, in assessing the protection guaranteed by freedom of expression, a clear distinction must be made between assertions of fact and value judgments. Whenever specific, precise information is provided that can be verified, it must be classified as a statement of fact. By contrast, value judgments can be defined as personal opinions, assessments, or descriptions concerning the personal, professional, or moral qualities of an individual, which by their very nature involve an inherent degree of subjectivity.
Statements of fact can be verified and must be proven, while opinions (value judgments) cannot be subject to the same requirement and benefit from the protection of freedom of expression. However, even an opinion must have a minimal factual basis; otherwise, it is not protected under Article 10 of the Convention.
It is important to note that even the simple sharing of posts falls under the above analysis, since it entails assuming responsibility for the content by the person who shares it, thereby incurring liability for their own act.
In conclusion, in order to establish the liability of employees who make statements online, it is essential to differentiate between statements of fact and value judgments, as well as to verify the existence of a minimal factual basis and good faith. Freedom of expression does not protect defamation or attacks lacking a real foundation.
Unsubstantiated statements or value judgments without a factual basis may lead to sanctions, especially when they infringe upon the employer’s right to reputation.
How to assess the purpose of an online message – the author’s good faith
Beyond the objective truth of the statements, it is also necessary to examine the author’s good faith in order to distinguish between the intention to convey information of public interest and the intent to slander, insult, or discredit.
In its case law, the ECHR emphasizes that posts concerning matters of general interest (such as unemployment, public health, corruption, or environmental protection) benefit from broader limits of permissible criticism, and the application of a sanction, even a minor one, may be deemed disproportionate in a democratic society.
For instance, a post about working conditions may be regarded as genuinely relevant to the community, its purpose being to inform potential candidates rather than to harm the company.
Exceeding the limits of protection under article 10 of the ECHR – how can the employer respond?
If the person is still an employee, the employer may impose disciplinary liability.
In many cases, employees defend themselves with arguments such as: the posts were made on their personal account; the posts were made outside working hours; no explicit reference was made to the individuals or institution concerned.
Courts have held that such arguments do not exempt the employee from liability when the statements damage the employer’s image, disparage management, or disrupt workplace relations. Such conduct constitutes a breach of the duty of loyalty, and the seriousness and extent of the harm will determine the nature of the sanction.
If the person is no longer an employee, the employer may bring a civil action against the author of the statements in order to protect their dignity and reputation (rights also guaranteed by the Convention).
Some of the remedies available through a civil action may also be pursued against a current employee.
The measures sought by the employer may include:
In any of the above scenarios, the company must prove the damage suffered, which may consist of:
Liability for anonymous posts – the responsibility of the online platform administrator
If a company finds that defamatory comments or posts have been published online but their author is anonymous and cannot be identified, holding that person accountable becomes nearly impossible. However, this does not mean that other forms of legal protection cannot be pursued, including the liability of the administrator of the platform where the messages were published.
The administrator of a platform that allows user-generated content may become liable if:
In such circumstances, the affected company may request:
Prevention vs. Reaction - Tools for employers
In an increasingly transparent and digital economic environment, reputation protection can no longer be achieved solely through reactive measures such as sanctions and litigation. Companies must develop mechanisms for prevention, monitoring, and proportionate reaction, balancing employees’ rights with the protection of the employer’s legitimate interests. In this regard, it is recommended that employers take measures such as:
Just as the internal regulations are part of any employer’s toolkit, these can be supplemented with codes of conduct or media policies that define the boundaries of acceptable communications.
Organizing internal sessions to discuss these rules is also useful, as employees can learn to distinguish between good-faith expression and communications that exceed legal, moral, or confidentiality limits.
Employment contracts may include clear confidentiality obligations and detail the employees’ duty of loyalty.
Confidentiality and loyalty clauses, included directly in the individual employment contract, provide the employer with additional protection against the disclosure of sensitive information, while also offering a solid contractual basis for sanctioning possible breaches.
Many situations that end up online stem from poor communication within the organization, with employees often perceiving that their complaints are either not considered or are ignored. Employers should therefore ensure transparent reporting mechanisms, with clear rules and reasonable response deadlines. Such an approach prevents the escalation of discontent and reduces the risk of “airing dirty laundry in public”.
Companies can periodically assess their reputation on forums, social networks, and review websites dedicated to employers. Where the limits of freedom of expression are exceeded or the platforms’ terms and conditions are breached, it is advisable to contact site administrators to request moderation or removal of the content, including anonymous posts.
When defamatory messages are identified, the employer may evaluate the immediate or long-term consequences of the posts and decide whether a public response, legal action, or disciplinary measures are appropriate, thereby ensuring a proactive and proportionate reaction.
Final Reflection
Just as freedom of expression is not an absolute right, criticism cannot be absolutely restricted either. In this context, it becomes especially important to foster an organizational culture that encourages internal dialogue, so that grievances do not immediately spill over into the public space.
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Authors:
Teodora Păunescu, Georgia Vasiu