Writing on the (Facebook) Wall? Don’t

A French Employment Tribunal has just ruled that an engineering firm’s dismissal of three employees for badmouthing managers and the HR department on the social networking site Facebook, was “justified”.

Writing on the Wall is now a job hazard following a French Employment Tribunal finding.

The Employment Tribunal had been asked to rule that the dismissal by the Paris firm Alten based at Boulogne-Billancourt (Hauts-de-Seine) was illegal because the Facebook page was private.

The Tribunal was told that in banter on his personal page on Facebook, in December 2008 one of the employees had joked about his job, saying he was displeased with his managers. Two others had responded: “Well welcome to the club.”

The company subsequently dismissed the three employees for “gross misconduct”, claiming their remarks had “denigrated the company” and “were an incitement to rebellion.” The company insisted it had not “violated the privacy of its employees”, because the remarks had been exchanged during office hours and on a public website.

The employees argued that the exchange between them was purely “private.” The case has provoked consternation among Facebook users who believed their “private” pages — closed only to their own invited circle — were just that, private.

Over at Libération newspaper Erwan Cario has dissected the issue and in a brief Survival Guide for Employees warns: “you want to criticise your boss safely? Well forget the Internet”.

In a country that jealously guards the privacy of the individual, Facebook, Twitter, email, the Internet, are, as elsewhere, now something of a double-edged sword.

Erwan Cario quotes employment lawyer Maître Mehdi Lefevre-Maalem about the Facebook outcome: “Under standard terms of employment, an employee is subject to an obligation of loyalty, if you insult your boss even at a private dinner party with your colleagues, you are in breach of contract, and if you do so on the Internet and via social networks, then even more so.” A fellow employment lawyer Maître Christiane Féral-Schuhl noted that an employment contract “does not remove an employee’s right to freedom of expression , but the principle of loyalty contained in the contract imposes an obligation of discretion on an employee both in what he says to outside third parties and with their own work colleagues.”

Facebook with its “Wall” and its circles of “friends” is especially tricky. If you write derogatory remarks about the boss on the Wall you are writing in a public place on a social network, so no pleas for privacy will wash, writes Erwan Cario. Similarly if your Facebook page is open only to your own invited friends but the page of one of your invited friends is open to any “friend” and you make derogatory remarks that are passed on , again forget pleas of privacy, he says. In any email message sent from office servers you need to include “Private” in the Subject line to ensure some limited right to privacy. However a pushy boss will still be able to read your email even though he can’t then use it directly to fire you. But rest assured the next time the company is planning to downsize you are likely to find yourself on the retrenchment frontline.

As for Twitter, just steer well clear, the article advises. “As soon as you retweet any remark your claims to privacy have gone,” it says. Lastly unless you are a plant trades union rep be wary of expressing views about the company next time your staff are picketing outside and the TV pops along for an interview. Any criticism of policies such as layoff or other management decisions can be taken down and may be used against you. Only union reps have unchallengeable rights fully to vent feelings on behalf of the work force.

Jean Marc Manach writing on a Le Monde blog reminds readers that social networks are exactly that “social and public and this makes invoking rights to privacy when posting anything on a social network on indeed anywhere on the Internet a complete anachronism”. He adds: Hugo Roy a “hacktiviste” (or hacker-activist) and one for whom all information should be free was one of the first to applaud the ending of privacy on Facebook. Writing in January 2010 he said: “On Facebook, everything is public. Me I rejoice at this excellent news . (…) Facebook is essentially a tool for sharing . (…) taking this as a starting point makes all debate about privacy or data protection illusionary , contradictory and rather ridiculous. Entrusting the protection of your privacy to a computer you cannot control and in the hands of a company whose business is based on holding your data, makes no sense. You cannot trust Facebook to respect your privacy.”

For Hugo Roy the solution is easy and uncomplicated: “Everyone must take control of their own data and understand the difference between what is private on the network, and what is public. Bear in mind that anything you do not control directly is definitely out of your reach and the Internet forgets nothing. We must learn to control what we publish, and keep what is most intimate and private off the public web. The Web is public space, your privacy has nothing to do with it.”

Hadopi, say the critics, wants you to forget the Internet and mail Google search a postcard instead.

Jean Marc Manach adds: “In my article on the increasing difficulty of having a ‘quarter of an hour of anonymity’, I explained that Google, Facebook and others are to the liberation of public speech what the sex industry is to sexual release: a way to operate and do business with new freedoms, but, at the same time, a purveyor of trivialisation … the Internet is revolutionary in that it has helped foment a human right — freedom of expression — once reserved for people who had access to the media (politicians, cultural and intellectual figures, journalists, etc). Thus freedom of expression has become something very real in virtual space: everyone can finally have not only a voice but also, and above all, make themselves heard. The problem is that the status of “public figure”, previously the preserve of the privileged few, is now accessible to all, with just a few clicks.”

Jean Marc Manach goes on: “If while we may feel some compassion for these three employees (and others who have experienced or will experience similar inconvenience), society as a whole should benefit … people will have to learn boundaries, be careful about public expression … However just as sexual liberation has not turned the “depraved ‘68 generation” into polygamists, the fact that it is easier today to be a public figure does not mean the end of privacy. Sexual liberation has freed and trivialized sexuality.. but this has not forced everyone to make love with everyone else.”

Just because a growing number of Internet users decide to conduct their lives in public life does not mean that all Internet users should follow suit. It is first and foremost a question of freedom.

Hadopi is not popular with French internauts. A ZDNet France survey found 47% of those questioned opposed the measures.

The Facebook firings come as France introduces controversial Hadopi (Haute Autorité pour la diffusion des oeuvres et la protection des droits sur Internet.) regulations placing the onus on computer owners to prove, if challenged, that no one in their household or enterprise was responsible for illegal downloading of protected intellectual property (as in music and films) subsequently traced to a specific ISP or network address.

This is particularly significant because of the number of unprotected wireless networks out there.

The radio station France Info warned that computers owners would all have to subscribe to costly software programmes and pay annual subscriptions to keep them and their private computers on the right side of Hadopi.

France Info said the cost would be even higher in a household with several internet-enabled devices such as mobile phones, ipads, kindles, computers, etc. as each of these also has to be Hadopi-proofed.

The cost of an annual sub to an anti virus service is already high for many users and Hadopi-proofing services are set to double the cost.

In addition hotels, B&Bs, gite owners and others in France’s vital tourism industry who offer free wireless access to guests may want to rethink their liability.

For unless they can prove they have taken Hadopi- approved protection measures, any illegal downloads traced to their home or business address are their liability.

There are concerns that free wireless access in gites, hotels, cafes and elsewhere is about to become a thing of the past.

Where to get Hadopi protection:
Software providers such as Ipsis are offering Hadopi-approved protection at 30-40 euros a month per device. Others are in the pipeline but to be legal the solutions must bear the Hadopi label of approval!

Of course and as ever when authority seeks to impose its will on Internet users, someone pops up with a work-around — . Here then is the view of one anti-Hadopiste:
“As the failed and now largely abandoned campaign against file-sharers in the United States proved, scare tactics simply don’t work. There are millions of file-sharers in France and many will simply carry on their activities in the belief that the odds of being caught are extremely slim.”

Commenters on another website are vitriolic in their criticism of the Big Brother tactics being employed by France: “This law would certainly make me think twice. Not only does it penalize people for open internet access, but it also requires a certain level of technical know-how as a prerequisite for owning a WiFi network. Not that I don’t wish folks knew more about computers. But getting your internet access shut off for a year because you didn’t know that WPA2 is more securish than WEP and some kiddie followed a tutorial to break in and start torrenting off your WiFi? Harsh and uncalled for.”

Here is another:
“Of course the file-shares in France are all drifting off to services like gigatribe for encrypted sharing with mates, one of the many options available. Eventually all file sharing will be encrypted and or proxied so file shares have little to worry about but us grown ups need to grow some balls before we lose all power to the brainless political elites.”

Others point out that private subscriber-based VPN networks are also becoming more popular.

Story: Ken Pottinger

Related on Freedom of Expression:
Here’s what Europe has in store for  us all

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