Social media has become one of the main communication tools used by different generations. One of the fundamental reasons behind the power of social media and its prevalence, is its ability to reach a much more people than the people with whom they usually interact. However, posts shared through social media may lead to legal liability of individuals within the framework of the concepts of freedom of thought and expression and reasonable criticism.
The right of freedom of expression is stated and legally protected on Article 26 of the Constitution:
“Everyone has the right to express and disseminate his thought and opinion by speech, in writing or in pictures. or through other media, individually or collectively. This right includes the freedom to receive and impart information and ideas without interference from official authorities.”[1]
However, the limits of such freedom are determined by reasonable criticism and personal rights.
In this respect, the usage of social media by employees and their posts within the scope of freedom of expression are crucial in terms of the consequence of employment agreements. As a matter of fact, while the employer is held responsible with the obligation to observe and protect the worker, the worker is also bound to the employer with the obligation of honesty and loyalty. In this regard, it is evident that both the usage of social media by the employees and the posts they shared through the social media channel will have certain consequences for both sides of the employment relationship.
It would be useful to mention the practices of employers to determine the limits of social media use before evaluating the legal consequences of the employee’s use of social media.
The fact that social media is easy and accessible with almost every technological device, due to technological developments, has led to the establishment of regulations considering workplaces where the employer’s job debt is performed. Employers in general determine certain rules and practices to limit the use of social media in terms of protection of trade secrets and performance-based efficiency of workers, and these rules are governed by workplace regulations. In terms of these limitations, in practice, there are employers who prefer to completely turn off internet access to workers in their workplaces, and there are also employers who limit the internet sites that can be accessed by filtering method or prefer to use a technological tracking system.
However, it is worth noting that the use of social media has reached dimensions that will affect the employee-employer relationship even before it is established. Employers can examine the social media accounts of the potential employees during the job interviews and evaluate their posts to decide on recruitment. In addition, the professional experiences of the workers are included in the social networks that provide professional connections, realization of connections and job applications through the same networks also play a major role in the establishment of employment agreements.
The simultaneous development of social media and technology has allowed to people to easily access social media anytime and anywhere with their mobile phones. This easiness of accessing social media has also paved the way for disputes that may arise between the employee and the employer. As a matter of fact due to the obligation of loyalty and integrity of the employee, that is positioned against the employer’s duty to protect the employee, if the employee’s use of social media and posts adversely affect the workplace, the employer, the employer’s trademark and reputation; the employee’s responsibility for violating the duty of loyalty will come to the fore.
An example to the disputes arising from the usage of social media would be the intense use of social media by the worker during working hours, in other words, the behaviour that is stated on the labor law literature as “cyber loafing”. An intensive and active use of social media during working hours highly affect the performance and productivity of the employee. In this context, certain employers who detect a use of social media can terminate the employment agreements of their workers. In this sense, a termination will be a valid termination since it will be based on the reasons arising from the behaviour and competence of the worker within the scope of the disruption of the workflow and workplace peace and order. Since the burden of proof of a valid termination is on the employer, it should be noted that in a dispute to be brought before the court, it will be very difficult to prove that an intense and active use of social media during working hours disrupts the work flow.
Apart from this, terminations made as a result of the employee’s social media posts can also be brought before the courts as a rightful termination. If the workers share data that is considered as trade secret give the employers the opportunity to terminate the employment agreement of the workers immediately and without compensation. Again, if the employees, in violation of the loyalty obligation, share posts that will damage the honour of the employers or one of the employers’ family members, and the expressions such as bullying the employer or another employee of the employer on social media will cause the termination of employment agreements with just cause.
Although workers have the freedom to express their thoughts and opinions within the scope of freedom of expression, the limits of this freedom are determined by the concept of reasonable criticism. In a decision, the high court determined the limits of the concept of reasonable criticism within the framework of labor law principles, by stating that “words and behaviours that are rude and offends the person and do not befit work etiquette” cannot be accepted as reasonable criticism. In this respect, it is obvious that workers should pay attention to these limits in their social media posts, otherwise they may face termination of their employment agreements without compensation.
In addition to these issues, another subject of dispute before the court regarding the social media posts of the workers is the posts of the workers that they are not at rest in relation to situations such as holidays, although they are expected to rest during their sick leave. In terms of concrete events where such post is shared, it is accepted that the workers violate the obligation of honesty and loyalty arising from the employment agreement.
As a result, posts on social media platforms, where people spend a significant part of their time, may lead to legal responsibilities and may lead to immediate termination of employment agreements without compensation. In this context, the usage of healthy social media is very important in terms of both social life and professional life.