France: Freedom of Expression: Can an Employee Say Anything on LinkedIn?

LinkedIn has the distinctive feature of being a personal social network used for professional purposes, where users’ names are directly associated with those of their companies.

Can an employer hold an employee accountable for the content of their publications and comments on LinkedIn?

Private conversations on social networks, not intended to be made public, cannot justify disciplinary action. While this “Facebook” case law is now well established, court decisions based on statements made on LinkedIn are comparatively scarce.

On May 31, 2024, in judgment No. 22/01378, the Court of Appeal of Douai was precisely called upon to rule on the dismissal of an employee who had published messages on LinkedIn that his employer described as abusive.

Among the defense arguments, the employee countered that his employer could not rely on a message published on his social network, as this fell within the scope of his private life.

The Court noted that the LinkedIn network was designed to allow its members to maintain relationships between professionals, and as such, the employee was presented by his name and profession. Although the publication was reserved for the employee’s first-level connections, it “was accessible to LinkedIn members from the professional world and shareable infinitely”. The judges inferred that the message published on LinkedIn “did not fall under the essential protection of private life”.

In another case, the Court of Appeal of Versailles had already qualified LinkedIn as a “public professional social network”, also dismissing the employee’s argument that his publications fell within his private life (Court of Appeal of Versailles, September 28, 2022, No. 21/00064).

Similarly, the Court of Appeal of Orléans confirmed the validity of the dismissal of an employee who had denigrated, on LinkedIn, the philosophy and organization of his company (Court of Appeal of Orléans, November 30, 2023, No. 21/03211).

These decisions highlight the public nature of the LinkedIn social network: any publication may give rise to sanctions, when the employee makes insulting, defamatory, or excessive statements that characterize an abuse of freedom of expression.

The courts have not yet taken a position on the political LinkedIn publications of employees. While, in principle, employees enjoy freedom of expression of their political opinions, both in the workplace and outside the company, on LinkedIn, the name of their employer appears directly under their identity. It remains to be seen whether magistrates will consider that the association of the company name with that of the employee justifies a restriction on their freedom of expression regarding their political opinions.