Monitoring social media is very controversial in Brazil. The area is not specifically regulated, but employers must follow general rules of labour and privacy law. On the one hand, monitoring corporate/professional information and communications is permitted, with discretion, given the justifiable need to protect corporate secrets and interests. Social media, however, generally contains personal data and opinions that are off-limits to the employer. A reactive investigation of public content may be justifiable if the employer has reasons to believe that the employee may have breached their professional duties, or engaged in serious social misconduct (e.g. racial slurs, racism, hate speech, or anything that might affect their duty of loyalty or professional interactions with coworkers and business partners). In any case, unlawfully obtained information cannot be used.

Workplace privacy law is a complicated network of legislation, dependant on the nature of the workplace and jurisdiction of operations. Generally, Canadian law restricts the collection, use and disclosure of information about employees to that which can be said to be ‘reasonable’. Constant monitoring of an employee’s social media is unlikely to be viewed as reasonable without some connection to the employee’s work. Legislation also generally requires that employees be notified of the collection of their personal information in advance. Employees may be terminated for just cause based on their social media activity where the content (1) harms the employer’s reputation, (2) renders it difficult for the employee to perform their duties, (3) leads to the refusal of others to work with that employee, (4) is a serious breach of the Criminal Code, and/or (5) makes it difficult for the employer to operate or direct its workforce.

Chilean law does not establish any regulatory framework regarding the use of social networks by employees. The Labour Department has stated that the employer may (in the exercise of its management authority) regulate the content shared on social networks related to the company, as long as it doesn’t affect the employee guarantee of expressing themselves freely and the control measures do not constitute an illegal intrusion into their private life that could affect their honour or privacy. Regarding employers’ internal rules, the Labour Directorate has ruled that although the legal system allows the employer to establish obligations, prohibitions and control measures, the limit is given by the provisions of Article 5 of the Labour Code, i.e. respect for the fundamental rights of workers.

As in Germany, systematic monitoring of employees would, as a rule, be in conflict with the GDPR. However, looking at employees’ posts on a case-by-case basis could well be consistent with GDPR protections when, for example, the employer suspects that an employee has breached their obligations.

Finland has exceptionally strict restrictions on processing employee data, and employers cannot monitor employees’ social media or even process individual posts to assess possible infringements without the employee’s consent, except in limited situations where the whistleblowing regulation applies. Receiving freely given consent from the employee for the purposes of investigating possible infringements on social media may also in practice be difficult.

In France, when an employee’s publications are public (i.e. open to all), the employer is entitled to view them. If the comments made by the employee against their company exceed the limits of freedom of expression, they may be penalised. If the publications are not public, the employer cannot lawfully use them as evidence. Exceptionally, the use of such evidence may be lawful if it is essential to the exercise of the ‘right to evidence’, and if the invasion of the employee’s privacy is strictly proportionate to the aim pursued.

Under certain strict conditions, the employer may be allowed to collect information from employees’ social media, always in compliance with the principles of the protection of personal data, in particular where the processing is directly related to professional reasons arising from a contract or law. In no case does the consent of the employee alone legitimise such processing because of the dependent nature of the employment relationship.

In Hungary, monitoring employees’ social media profiles in general is not allowed. Monitoring social media profiles may be allowed when necessary to protect the employer’s legitimate interests. Evidence obtained in an unlawful manner may be taken into account by courts when justified taking into consideration, among other things, the impact of the use of the unlawfully obtained evidence on the establishment of the facts and the weight of other evidence available.

In Ireland, when it comes to monitoring employees’ social media activity, proportionality and transparency are key. Having clear social media policies in place and providing training to employees on appropriate/ acceptable use is essential. Any monitoring should be notified to employees and the purpose of such monitoring specified in the policy. Indiscriminate monitoring is not permitted under our data protection legislation and GDPR, but monitoring or reviewing employee’s social media activity is permissible where it is limited to that which is necessary and appropriate. Difficulties often arise where an employee’s misuse of socialmedia results in disciplinary action and there have been a number of cases in Ireland dealing with this. It is clear from those cases that the usual principles of fair procedures and a proportionate and reasonable response by the employer to the employee’s activity will still apply.

Italian law, much like German law, strikes a balance when it comes to monitoring employees’ social media. It generally restricts systematic monitoring to protect employees’ privacy. Instead, it allows limited, event-related viewing when there’s a reasonable suspicion of contractual breaches or other legitimate interests, ensuring it aligns with the law and respects employees’ rights to privacy and informational self-determination. In any case, monitoring of social media posts can be done (and the posts possibly used in a proceeding) only when the employee’s social media profile is public.

In Luxembourg, the legislation does not provide rules specifically applicable to employers accessing information disclosed by an employee on social media sites. However, a fair balance must be struck between the employee’s right to privacy and the prohibition on excessive processing of personal data, and the employer’s interest in ensuring the defence of its rights and access to evidence (i.e a prohibition on the employer using dishonest, unfair or fraudulent means to access this information).

The influence of social media on the employment relationship has indeed seen a rise in recent years. Systematic monitoring of social media use is, in principle, not allowed, unless it meets the criteria of proportionality and necessity. This does not however mean that employees are ‘free as a bird’ in their use of social media. Information obtained through social media can absolutely play an important role in dismissal cases or, for example, in cases on breaches of restrictive covenants. As such, it has become both a blessing and a burden for employers.

Systematic employees monitoring is strictly regulated in the Polish Labour Code, and its principles are the prohibition of violations of employee privacy and compliance with statutory purposes. Therefore, systematic social media monitoring cannot be applied in Poland. This is different to incidental, event-related viewing based on the employer’s legitimate purpose. This type of content gathered from social media may be used as an evidence in court proceedings.

Under Romanian legislation, monitoring of employees at the workplace based on legitimate interest of the employer, through video surveillance or through electronic means is possible if, in addition to the GDPR rules, the employer has consulted the trade union or employee representatives in advance, other less intrusive means for attaining the envisaged purpose have previously been unsuccessful, and the duration of data storage does not exceed 30 days, except when expressly provided otherwise by law or when there is a sound justification. Under relevant caselaw of the European Court of Human Rights (e.g. Barbulescu v Romania), employees have a right to privacy at work and monitoring by the employer is allowed only if specific requirements (including proportionality) are met.

In Spain, according to case law, if access to employees’ social networks is free or has no restrictions, the right to privacy is not violated. This is so because there is an authorization from the employee so that anyone can have access to the content in question. In short, the employer can adopt control and surveillance measures if they respect the dignity and privacy of employees.

In Sweden employers are not allowed to systematically monitor employee posts on social media. However, social media posts can be useful evidence in a dispute to prove, for example, if an employee has violated the very broad duty of loyalty towards the employer.

In the UK we would also advise against systematic monitoring of employees’ social media.  However, an employee who posts a particularly offensive or even unlawful comment on a public social media channel (and a distinction should be drawn between public and private forums) may legitimately be made the subject of disciplinary action by the employer, especially if there is a nexus between the comment and their work duties, and/or if employer policies are clear that action may be taken in such circumstances. It is, however, a highly fact- and context-specific area, and employees’ rights to protection against discrimination (especially on the grounds of protected beliefs) and human rights (freedom of speech) may be relevant, so employers should always tread carefully.

Unfortunately, Ukrainian legislation does not sufficiently regulate the issue of monitoring an employee’s social media. We believe such regulation is necessary and should include requirements that employers to have transparent social media monitoring policies, monitoring may only take place for a necessary purpose, and the scope of the monitoring should be proportionate to the objective. Analysing all social media for no reason may be considered a violation of employees’ rights.