Freedom of expression is a cornerstone of a democratic society and protects ideas that disturb and shock as well. That protection, however, is not unlimited. Whether a post remains within the bounds of criticism or constitutes an infringement of personal rights is determined by assessing together the content of the statement, the weight of the expression used, the public position of the target and the context of the post.
Three separate areas of liability
The same post may give rise to three independent consequences:
- Criminal liability: Offences such as insult, defamation, threat, breach of the privacy of private life, and unlawful dissemination of personal data may arise. The offence of insult is, as a rule, subject to complaint, and the period for complaint is six months from learning of the act and the perpetrator.
- Civil liability: A person whose personal rights have been infringed may seek an order stopping the infringement, a declaration of unlawfulness, publication of the judgment, and non-pecuniary damages together with pecuniary damages where applicable.
- Employment law consequences: An employee's posts about their employer, managers or colleagues may, depending on the particular circumstances, constitute valid or even just cause for termination. That assessment is made by reference to the content of the post, its public accessibility and its effect on the employment relationship.
The line between criticism and insult
The criterion consistently emphasised in judicial decisions is whether the expression remains in the nature of a statement of opinion. Harsh criticism directed at a person's conduct, decision or public activity is protected. By contrast, degrading characterisations aimed directly at a person's honour, dignity and standing, and not resting on any concrete fact, fall outside the protected sphere.
For public figures the boundary of criticism is wider; politicians, executives and public officials are expected to show greater tolerance of criticism directed at them. That widening does not, however, mean that personal rights are left wholly unprotected.
As a rule: expression directed at an idea is protected; degradation directed at a person is not.
If you are not the one who created the post
Sharing, quoting or republishing content belonging to someone else may also give rise to liability. Where the unlawfulness of the content is plainly apparent, the person sharing it is held responsible for their own act. Amplifying content by reproducing it is, as a matter of law, an independent act.
What should you do if you are targeted?
- Secure the evidence. A screenshot alone is weak evidence. Having the link address of the content, together with the date and time, recorded by a notary or through electronic evidence capture is the strongest step in the file.
- Request that access be blocked. For internet content constituting an infringement of personal rights, application may be made to the criminal judgeship of peace for access to be blocked and the content removed. This procedure moves quickly and decisions are implemented within a short time.
- Keep track of time limits. The six-month period for complaint in the offence of insult, and the limitation periods in an action for non-pecuniary damages, begin to run. Waiting usually weakens the claim.
- Respond on legal ground. Posts made by way of reply may give rise to a separate file against you.
Before posting
For corporate accounts, establishing a social media policy, determining in advance the responses to be given in a crisis, and informing employees are all more effective than any defence mounted afterwards. Our office works with corporate clients on preparing such policies and managing digital reputation processes.
