Facebook case law in France

FranceUnited Kingdom

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Misconduct via social media is an increasing issue for employers. Case law in France until recently considered that Facebook is a public arena whatever the privacy settings. As a result, criticizing an employer on Facebook could constitute valid grounds for a dismissal under French lower courts decisions. The risks at stake for an employee are important as 70% of employees in France belong to e-communities.



Even union members have limited freedom of speech on Facebook: a union member posted the following comment on his company union's wall after the suicide of a co-worker "sh…y day, sh…ty weather, sh….y work, sh….y bosses…I don't like little bosses that play big bosses". The expressions used were viewed as exceeding the limits of acceptable criticism. The Court considered that the comments were a criminal offense (public insult). Freedom of speech as a union member was no defence.



However more recently the Supreme Court has taken a different approach. In April 2013, the Civil Chamber of the French Supreme Court ruled that a Facebook profile was not public. In this case, an employer sought damages for public insult against an ex-employee who insulted the employer on a social media site. The Court considered that her actions were in her private sphere and that there was no public insult as only a very restricted number of individuals could access her wall.



We are waiting for a decision of the Employment Chamber of the French Supreme Court on whether criticism made by an employee against his/her employer on social media may result in disciplinary proceedings against the employee, and even lead to a dismissal for fault, and we will keep you updated on this.