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Understanding how courts apply legal principles to real-world social media disputes provides invaluable guidance for HR professionals. Recent cases from Italy, Belgium and Spain reveal how courts balance employee rights with employers' legitimate business interests.

Italy: The Fake Profile Case and Public-Private Distinction

The 2015 Supreme Court Decision

In 2015, the Italian Supreme Court rendered a verdict in a particular case (No. 10955/2015). A company created a fake Facebook profile of a woman to prove an employees negligence. The employer used this fake profile to communicate with the employee during working hours, proving he was engaging in a personal activity - for a considerable period of time - during work time to the company's detriment. The Court held the termination was lawful and justified.

A recent Milan«s Labour Court Decision

A more recent decision rendered by the Milan Labour Court in July 2025 established an important distinction. In this specific case, an employee made statements in a private WhatsApp chat and posted comments in a public Facebook group.

The Court ruled that statements in the private WhatsApp chat could not be used against the employee in disciplinary proceedings since these were protected by privacy rights and regulations. However, Facebook posts in an public group could be used as evidence, as they were accessible to an »undifferentiated audience of recipients«.

This distinction between private and public communications is one of significant importance. In a nutshell, posts on public social media platforms can generally be accessed and used as evidence, while private messages are safeguarded by stronger privacy protections, which also impacts the disciplinary power of the employer.

Spain: Balancing Public Interest and Creative Expression

The Wildfire Prevention Case

A union appealed a collective bargaining agreement clause affecting employees in wildfire prevention. The clause prohibited employees from posting personal information on social media about wildfire prevention or firefighting activities without explicit company authorisation.

The goal was to avoid public confusion and prevent false or inaccurate information during emergencies. The union claimed that the employees« freedom of expression was unlawfully restricted. However, the national court disagreed, ruling the limitation was proportionate and legitimate, balancing freedom of expression with public interest in preventing misinformation.

The Sarcastic Poem Case

An employee wrote a sarcastic poem criticising his company's business plan, essentially calling it rubbish, though in a humorous and creative way.. The company terminated his contract, arguing his post was damaging and disrespectful to the company.

The court ruled in favour of the employee, finding the dismissal null and void as it violated his right to freedom of speech. Whilst he had indeed criticised the company, he had not insulted anyone or shared false information. The criticism was expressed creatively and non-offensively, making it a form of criticism that is constitutionally protected.

These examples show how Spanish courts assess context and proportionality. Criticism is allowed, but abuse, personal attacks or disclosure of confidential information however are not. The Spanish Supreme Court has clarified that freedom of expression does not protect insults, verbal abuse or dishonourable accusations.

Belgium: Excessive Personal Internet Use

The Brussels Labour Tribunal rendered a decision in a case with particularly egregious facts. Over just sixteen and a half working days, an employee spent more than seventy hours browsing stock market websites and updating personal files on his work computer, which represented almost half of his total working time on non-work activities.

The employee argued that the e-mails and personal files fell within his private sphere and were protected by privacy rights. The court did however not decide this way. Whilst employees do have privacy rights, these are not absolute, particularly in professional settings. The court held that employers have a legitimate right to monitor work performance and ensure company time and resources are used appropriately.

Common Principles Across Jurisdictions

Several common principles emerge:

Context matters. Courts examine whether communications were public or private, during work hours or on personal time, and whether company resources were used.

Proportionality is key. Courts assess whether conduct was serious enough to warrant the employer's response.

Nature of speech affects protection. Comments involving false statements, personal insults, or confidential disclosures receive minimal protection. Honest opinions, even critical ones, receive greater protection when expressed without abuse or malicious intent.

Privacy protections vary with accessibility. Private communications in closed channels receive stronger protections than public posts accessible to broad audiences.

Practical Implications for Employers

These cases suggest several guidelines:

Document context carefully. Record whether communications were public or private, when they occurred, what devices were used and who could access those devices.

Assess content carefully. Distinguish between legitimate criticism and genuine misconduct involving insults, false statements or confidential disclosures.

Consider proportionality. Match responses to severity of conduct.

Ensure clear policies. Many disputes arise because expectations were not communicated clearly.

Balance rights and interests. Always consider both employee rights and legitimate business interests.

Conclusion

Case law from Italy, Belgium and Spain demonstrates that courts are developing sophisticated frameworks for analysing social media issues. Whilst outcomes vary based on circumstances, fundamental principles remain consistent: balancing employee rights with legitimate business interests, requiring proportionality and carefully considering context.

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For a deeper dive into how Italy, Spain and Belgium are addressing these issues, watch Innangard«s recent podcast: »Social Media in the Workplace: Comparing Experiences and Best Practices.«

This article is part of a three-part series on social media in the workplace from a legal perspective. The final article provides practical suggestions for employers navigating these complex issues.

Information only; not legal advice.