Legal

By FABRIZIO JACOBACCI

Best Practices in HR Management Legal

Sensitive Company Information: Are Social Networks a True Threat?

Posting comments on social networks like Facebook has become common practice. Everyone wants to complain about something or someone, but what happens when complaints concern employers? The disclosure of confidential information on social platforms could endanger companies, which should adopt specific conduct policies.

In the Internet age and these times of digital communication, the interaction between work life and private life is more frequent and their unclear lines of separation give rise to several issues. So what happens when an employee shares on Facebook, or other social networks, information related to their work, employer or job environment?

THE LAW FRAME

According to the Italian civil code (art. 2105 c.c.), employees have a general “duty of loyalty” towards their employers which includes, among other things, the duty to avoid disclosing any private information or news pertaining to the organization and the production method of the company; that is, any information which could potentially endanger the company. This consists of technical information such as processes or products (typically production and manufacturing knowhow), commercial information (clients and suppliers logs, economic practices and policies, business plans) and administrative data (UNI, EN, ISO 9001 quality certifications, internal administration information). Employees should not only respect the duties prescribed by the law, but also refrain from acting against the interests of their employer.

CIVIL AND CRIMINAL LIABILITY

For example, an Italian court found that an employer had the right to terminate the employment agreement with an employee who had attempted to transmit confidential information to a direct competitor−although the information was never actually disclosed (Court of Appeal of Ancona, 8.9.2011). Employees can incur civil sanctions for disclosing confidential information they acquired because of their current employment with that company, whereas for criminal liability to apply it is necessary to demonstrate that employees acquired the information unlawfully disclosed during the performance of “their tasks or duties” (art. 622, 626 of the Criminal Code). Disclosures can be more damaging if made on social platforms like Facebook that are easily accessible by anyone everywhere. Italian courts recently held that privacy law does not protect information disclosed on a Facebook profile − even if limited to so-called “friends” − since this type of publication involves the risk of subsequent communication by the “friends”. The judges specified that only chat conversations are protected by privacy laws and, as such, could not be used as evidence in a trial. Employees can be further liable for defamation if they publish on Facebook false or defamatory statements regarding their employer. An ex-employee was found guilty of aggravated defamation − a criminal offense − because they published insults and false statements on their former employer’s Facebook page. The defamation caused by “means of publicity” constitutes a more serious offense, and there are also evidence and comments on the famous social network Facebook itself.

GOOD PRACTICES FOR EMPLOYERS

Employers should adopt company conduct policies explaining what information can be disclosed. Further, the company can specify what company information can be freely disclosed on social networks, for example through internal directives providing for a “common profile” of the company. Employees should be informed of these policies and be able to freely consult them. Employees in contact with sensitive information should sign “confidentiality agreements”, preferably as part of their employment contract or a separate document upon being hired. This allows employees to understand which possible sanctions, including breach of contract, they could face if they disclosed confidential information. Violation of the duty of confidentiality by employees, if potentially detrimental to the company, can constitute a just cause for termination, independently of that obligation being included in the company's conduct policy (Italian Supreme Court, Judgments 18.09.2013 and 10.12.2008). Indeed, employees’ respect of their legal duties constitute the threshold for a trusting relationship. This should be at the center of every employer-employee relationship, especially in the context of this fastpaced digital world.•

KEYWORDS

➜ Sharing information on social networks ➜ Disclosure can be more damaging on social platforms ➜ Employers should adopt company conduct policies ➜ Violation of confidentiality duty can be a just cause for termination ➜ Employees’ respect of legal duties constitute the threshold for a trusting relationship