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Why employee misuse of the internet is risky business in Italy
19/08/2021
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Sharon Reilly
Sharon Reilly is a dual-qualified lawyer, co-founder, and managing partner of Reilly & Tesoro, Employment Law Firm

The internet and social media have become an integral part of our daily lives and, as a result, throwing up all sorts of issues in the workplace, previously unheard of.

In Italy, in recent years, there has been an exponential increase in employment disputes arising from the abuse or misuse of the internet. Cases are wide and varied: from employees criticising their employer on social media, to excessive browsing of the world wide web during working hours.

It’s always a delicate balancing act for businesses to decide how and when to intervene, in monitoring and chastising errant employees, within the confines of the law.

The main characteristic of the Italian subordinate employment relationship is that an employee makes themselves available during working hours and performs their duties with care and diligence under the direction and supervision of their employer. Even outside working hours, employees are still bound by various duties towards the company: that of loyalty, non-competition, and confidentiality.

It is within this legal framework that excessive internet use, especially browsing social media, for personal purposes during working hours makes an interesting study.

Using social media as a vehicle to complain about a situation that is not going their way has become commonplace for many people, but this can be very risky, especially if the venting is directed at the company they work for or at their boss.

Insulting the company or the boss on Facebook or any other social network can, in fact, give the company ammunition to start a disciplinary procedure, which could lead, in the most serious cases, to on-the-spot dismissal (ie, for just cause) when the insults hurled are such as to irretrievably erode trust in the employee.

In a case in point, the Italian Supreme Court found that “offensive remarks posted by the employee on his Facebook wall create serious damage to the corporate image and reputation and are of a defamatory nature such as to justify dismissal” (Court of Cassation, 27 April 2018, no. 10280).

The case stemmed from the firing of an employee on the back of statements she had posted on her Facebook page, in which she defamed the company and her employer, albeit without mentioning the company by name. Her very words were: “[T]his shitty job breaks my balls.”

The Supreme Court ruled that spreading such a disparaging message through social media constitutes defamation, since the defamatory expressions so conveyed could reach an indeterminate number of people. A salutary lesson for others!

It goes without saying that not just any old post on Facebook can lead to a sacking. Each case turns on its own unique facts and circumstances that must be weighted based on the seriousness and reach of the comments and, of course, their traceability back to the company. You can criticise, but not cause offence: often a very fine line between the two.

Posting on social media during working hours is doubly risky.

The advent of technology combined with the pandemic has had a massive impact on the workplace and where and how people work. Just think of the current rise in remote working (from 5% to 49% in Italy). The reality for millions of employees is: have a computer (and broadband), can work.

Given that use of the internet at work is a necessity for many, what happens when the employee uses the internet for personal purposes during working hours?

Be it checking the weather forecast, booking an overnight stay in a hotel, shopping on Amazon, chatting and surfing on Facebook, Instagram, Twitter, etc – these are all personal activities that employees unwittingly do on their company computer during working hours and generally constitute a breach of contract. In fact, this type of behaviour, especially if expressly prohibited by company policies, may expose the employee to a disciplinary complaint.

There is no question that employees are paid to work and not to surf. Particularly where the employer has regulated the use of the internet for personal purposes, including in compliance with privacy legislation, a challenge for such non-work uses is likely to follow. Naturally, the sanction levied will depend on the seriousness of the “private use”.

It’s one thing to check out the weather forecast for a few minutes a day; quite another to spend entire hours browsing the web on company time.

In fact, in its ruling (No. 3133) of 1 February 2019, the Supreme Court found it was perfectly legitimate to dismiss an employee who, according to an analysis of his computer, had, during working hours, logged in 6,000 times over 18 months, of which around 4,500 on Facebook, in blatant violation of the duties of diligence and good faith in performing his job.