1To what extent can the employee’s privacy be protected? Private life and professional life are sometimes inextricably intertwined and ultimately opposed. Indeed, the employee, like any individual, can claim the right to a certain intimacy, but the delimitation of this intimacy implies determining the boundaries that the employer cannot cross. This is not an easy thing to do, if only because the cases of tension are very numerous.

2The issue of the employee’s privacy necessarily impacts the tests that the employer may undergo: drug testing, obtaining the employee’s credit history, HIV testing, genetic testing, criminal background checks, psychological tests, etc. The issue of employee surveillance is also crucial : monitoring the use of computers, telephones and electronic devices to locate employees, searching offices and workplaces, or using video surveillance devices. Finally, other problematic situations for the company may be linked to the employee’s claim to privacy: freedom of clothing, emotional relations with another employee.

3These various examples inevitably highlight the tension between two contradictory sets of principles. On the one hand, there is the principle of the inviolability of the employee’s right to privacy. On the other hand, there is the right of the employer to enjoy his property and to exercise his managerial powers to protect his property against potential abuse by his employees. The legitimacy of these respective claims is undeniable, but the question of balance is delicate and requires all the delicacy of a praetorian work. Indeed, only the judge is confronted with pragmatic situations that will lead him to balance private life and property rights. The purpose of this series of articles is to highlight the importance of the case law in the search for this balance.

4The multitude of situations in which a confrontation between these two principles is inevitable makes it difficult to elaborate an exhaustive panorama on the question of the employee’s private life in comparative law. It therefore seems relevant to begin the analysis of this chronicle with two examples: the consensual relationship between employees (French and American case law) (I) and the use by employees of social networks (Chinese and Italian decisions) (II).

I - Dangerous liaisons in French and American labor law

5The situation referred to here is that of purely consensual relations between two employees. This therefore excludes cases of harassment, which would constitute a fault and justify dismissal. A love affair in the workplace, however discreet it may be, is not without risk for the employee. Two antagonistic judicial positions can be used: that of the French judge and that of his American counterpart.

6In France, the employee undoubtedly benefits from an advantage based on two texts. On the one hand, Article 9 of the Civil Code states that « Everyone has the right to respect for his or her private life », immediately excluding the interference of an employer in a love relationship that does not generate any disturbance in the company. In addition, Article L. 1132-1 of the Labor Code prohibits any direct or indirect discrimination « on the basis of morals or sexual orientation (...) or family status (...) ». The love relationship is not expressly covered, but this article could extend its scope of protection to sentimental life in general.

II - Social networks and labour law in Chinese and Canadian jurisprudence

18To date, Labour jurisprudence is based mainly on another provision: Article 39 of the Employment Contracts Act, according to which the employee’s fault must be serious in order for the employer to justify immediate dismissal without compensation. These circumstances include cases where the employee has seriously violated the rules and procedures established by the employer, has caused significant harm to the employer due to gross neglect of duty or seeking private benefits, has simultaneously entered into an employment relationship with another employer that seriously affects his or her current employment, or is the subject of a criminal investigation.

19On the basis of this text alone, three lines of case law can be identified:

• • 16 Chen c. Di Nuo Wei Ya International Freight Forwarders (Shanghai) Co., Ltd.

  The first type of decision relates to the dismissal of the employee for having put certain information on social networks online. For example, in 201316, an employer dismissed an employee for unauthorized absence from work for more than eight days. During the proceedings, the employer produced data published by the employee on his Weibo page, showing him sunbathing on a date when the employer had not given him authorization for the absence. The judge admitted the admissibility of this evidence. Another category of cases relates to criticisms made by employees against their colleagues or management.

• • 17 Beijing Bonatongcheng Technology Co., Ltd. c. Li Chennan.

  In a 2015 decision17, an employee had signed an agreement with his employer that, in the event of dissolution of his employment contract, he would receive compensation if he refrained from making comments that could damage the employer’s reputation. Shortly before leaving his job, the employee posted a comment on his Weibo account indicating that the employer was making frequent payroll deductions. The employer claimed that the employee’s comment had seriously damaged his reputation, which justified the refusal to pay him any money after his termination. The employee argued that there was no malicious intent, especially since this information was proven. The judge ruled in favour of the employee, not on the basis of the truthfulness of the information given, but on the illegality of such compensation. Indeed, it was not up to the parties to decide on the compensation required in case of dismissal, since the law protected the employee’s right to such compensation. It is regrettable that the judge did not take this opportunity to clarify the case law on the matter, and to affirm - or invalidate - the right of an employee to communicate accurate information about his company.

• • 18 Xi’an Mou Gong Ye Xuexiao c. Tang.

  On the other hand, and this is the third jurisprudential trend, when the information is false and obviously proceeds from an intention to harm, the judge legitimately shows severity towards the employee who defames his employer. In a 2016 case18, a teacher dismissed for incompetence had posted derogatory comments about the school in his WeChat groups. His comments consisted of accusations that the plaintiff did not offer appropriate qualifications, issued false diplomas, and paid himself a large portion of the salaries of students on internships. In court, the plaintiff argued that the defendant’s claims were false and had led several students to withdraw their enrollment from the school, with many other students considering similar actions. The court ordered the defendant to publish a written public apology and to pay damages.

20Moreover, in Canada, even if the judicial solutions vary, they highlight the lack of protection for the employee who is too imprudent to remain discreet about certain information.

22Three examples illustrate this point :

• • 20 Montréal (Ville) and Syndicat des fonctionnaires municipaux de Montréal (SCFP-429) (Levasseur), Re, (...)

  An administrative officer from the City of Montreal’s human resources department was fired for posting negative comments on Facebook about the director’s decision to euthanize a pit bull after it attacked citizens. However, his dismissal was reduced to a six-month suspension20.

• • 21 (Municipalité) and Syndicat des travailleuses et travailleurs de la municipalité de Weedon (CSN) (2 (...)

  A city official was fired for posting on Facebook a video of an offensive song he had composed himself, with lyrics subtly targeting the Director of Technical Services and the Mayor. The video ended with a degrading gesture. His dismissal was reduced to a six-month suspension21.

• • 22 Librairie Renaud-Bray inc. and Syndicat des employées et employés professionnels-les et de bureau, (...)

  A bookstore clerk was suspended for posting defamatory comments, damaging the employer’s reputation, on his blog accessible via Facebook. The articles invited readers to file online complaints against his employer and were critical of the organization’s values. His three-day suspension was confirmed22.

24In addition to the content of the messages posted on social media and the nature of the employee’s position, the judge highlighted a number of judicial clues:

• Who was the audience for the posted message?

• Which platform was used?

• What were the details of the platform (e.g. privacy settings)?

• How long had the employee been employed?

• What was the employee’s reaction to the discovery of the messages (repentant or not)?

25These few examples highlight all the diversity of the judicial approach on the issue of employee privacy. Sometimes the solutions are opposed, sometimes they are the same even if the legal bases are different. In order to present certain laws in a more complete manner, this chronicle brings together the work of researchers from very different backgrounds.

26Anglo-Saxon law will be addressed through :

• the study in Canadian law of Professor Urwana Coiquaud devoted to the question of employee tattooing;

• Professor Gabrielle Golding’s analysis of Australian case law on the use of social networks by employees;

• the article by Professor Peter Upson on drug testing in the workplace in New Zealand law;

• the overview prepared by Professor Matthew W. Finkin’s on employee privacy in the United States.

27The chronicle will continue with a study of a South American country, Mexico, where Professor Gabriela Mendizabal Bermudez will present the jurisprudence on the organization of working time to make it compatible with family life.

28The Middle East will be considered through the work of Professor Melda Sur who will present the personal life of the employee in Turkish jurisprudence.

29Finally the European law will close this file, since the following will be discussed:

• German judicial law relating to the question of the employee’s dismissal for a personal activity that causes prejudice or inconvenience to the company. Professors Marie-Cécile Escande-Varniol and Gerhard Binkert carried out this work;

• Russian jurisprudence in the light of international standards concerning the employee’s private life by professors Elena Serebryakova and Elena Sychenko;

• the Spanish reform of 2019 affecting the reconciliation between work and family life by professors Mercedes Lopez Balaguer and Emma Rodriguez Rodriguez;

• a reminder of the French jurisprudence on the respect of personal life in the workplace and during working hours through the inspection of the employee’s computer files by Sébastien Ranc.