aware of any specific decision that would provide orientation on the use of electronic
means by the employees in respect to the nature of the information shared by
employees through social networks. With respect to this aspect of the issue and
the subsequent question of use of such information for evidence in disciplinary
actions against the employee, the Czech courts are primarily guided by the interpretation provided by the European Court of Human Rights in the Grand Chamber
decision from 5th September 2017 in the case Bărbulescu v Romania, Application
No. 26713/05.
Also in the relevant legislation, there is no specific provision for the use of social
media. The above mentioned Section 316 of the Labour Code contains merely a
general provision concerning use of employer’s assets (electronic as well as
non-electronic) by the employees in subsection 1. This provision reads as follows:
(1) Without their employer’s consent, employees may not use the employer’s means of
production and other means necessary for performance of work, including computers and
telecommunication technology for their personal needs. The employer is authorized to check
compliance with the prohibition laid down in the first sentence in an appropriate way.
When it comes to the online (as well as offline) activity of the employee, it is
further generally governed by the Section 301 of the Labour Code, which enumerates fundamental obligations of the employees as follows:
Employees are obliged:
(a) to work properly in accordance with their strength, knowledge and capabilities, fulfil
instructions given by their superiors in compliance with the statutory provisions and
cooperate with other employees;
(b) to make full use of their working hours (working time) and capital equipment (means of
production) for performance of the work assigned to them, to fulfil their working tasks
properly and timely;
(c) to observe the statutory provisions relating to the type of work carried out by them; to
observe other regulations relating to the type of work performed by them provided that
they have been duly acquainted therewith;
(d) to properly use (manage) the resources (means) entrusted to them by the employer, to
secure and protect the employer’s property against damage, loss, destruction and misuse,
and not to act contrary to legitimate interests of the employer.
Pursuant to the original decision in the case Bărbulescu v Romania, application
no. 26713/05, delivered on 12th January 2016, the doctrinal interpretation of the
obligations of the employee towards the employer with regards to use of the social
networks indicates that in case, that the employee writes in the name of the employer
on the social network, the employer can monitor the content and use the information
as an evidence. It can further be deduced that in situation, when the employee writes
defamatory or similarly infringing posts about his employer from his private profile
using the employer’s assets and the information is publicly available, he acts
contrary to legitimate interest of employer and such action may constitute breach
of the duty laid down, in case of Czech law, in particular in the above described
Section 301 lit. d) of the Labour Code. The strength of these conclusions was,
however, shaken by the Grand Chamber decision in the Bărbulescu v Romania case,
application No. 26713/05, delivered on 5th September 2017, as the Grand Chamber
126
R. Polčák et al.
means by the employees in respect to the nature of the information shared by
employees through social networks. With respect to this aspect of the issue and
the subsequent question of use of such information for evidence in disciplinary
actions against the employee, the Czech courts are primarily guided by the interpretation provided by the European Court of Human Rights in the Grand Chamber
decision from 5th September 2017 in the case Bărbulescu v Romania, Application
No. 26713/05.
Also in the relevant legislation, there is no specific provision for the use of social
media. The above mentioned Section 316 of the Labour Code contains merely a
general provision concerning use of employer’s assets (electronic as well as
non-electronic) by the employees in subsection 1. This provision reads as follows:
(1) Without their employer’s consent, employees may not use the employer’s means of
production and other means necessary for performance of work, including computers and
telecommunication technology for their personal needs. The employer is authorized to check
compliance with the prohibition laid down in the first sentence in an appropriate way.
When it comes to the online (as well as offline) activity of the employee, it is
further generally governed by the Section 301 of the Labour Code, which enumerates fundamental obligations of the employees as follows:
Employees are obliged:
(a) to work properly in accordance with their strength, knowledge and capabilities, fulfil
instructions given by their superiors in compliance with the statutory provisions and
cooperate with other employees;
(b) to make full use of their working hours (working time) and capital equipment (means of
production) for performance of the work assigned to them, to fulfil their working tasks
properly and timely;
(c) to observe the statutory provisions relating to the type of work carried out by them; to
observe other regulations relating to the type of work performed by them provided that
they have been duly acquainted therewith;
(d) to properly use (manage) the resources (means) entrusted to them by the employer, to
secure and protect the employer’s property against damage, loss, destruction and misuse,
and not to act contrary to legitimate interests of the employer.
Pursuant to the original decision in the case Bărbulescu v Romania, application
no. 26713/05, delivered on 12th January 2016, the doctrinal interpretation of the
obligations of the employee towards the employer with regards to use of the social
networks indicates that in case, that the employee writes in the name of the employer
on the social network, the employer can monitor the content and use the information
as an evidence. It can further be deduced that in situation, when the employee writes
defamatory or similarly infringing posts about his employer from his private profile
using the employer’s assets and the information is publicly available, he acts
contrary to legitimate interest of employer and such action may constitute breach
of the duty laid down, in case of Czech law, in particular in the above described
Section 301 lit. d) of the Labour Code. The strength of these conclusions was,
however, shaken by the Grand Chamber decision in the Bărbulescu v Romania case,
application No. 26713/05, delivered on 5th September 2017, as the Grand Chamber
126
R. Polčák et al.