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Dismissal for “online comments”: the view of the Italian Supreme Court.

Published in: Employment law
by Antonella Marmo
Home > Dismissal for “online comments”: the view of the Italian Supreme Court.

In an increasingly interconnected world, the borderline between employees’ freedom of expression and the protection of corporate reputation is a hotly debated employment law issue. The Italian Supreme Court, in its recent decision No. 35922/2023, takes this opportunity to clarify the issue.

The case: dismissal for "online comments"

An employee became the centre of a legal storm because of his digital comments against his employer. His Facebook wall became the stage for a seemingly harmless protest that, however, triggered the company’s wrath.

The employee, by negatively addressing his company, had posted comments that were seriously detrimental to the company’s image and prestige, as well as to the honour and dignity of its managers and persons known to be linked to the company, claiming that employees were treated “like rags”.

Subsequently, the employee received a disciplinary letter accusing him of crossing the boundaries of acceptable criticism. The words used were considered not only offensive, but potentially damaging to company harmony, creating an atmosphere of tension.

L’azienda pertanto decide di porre fine al rapporto lavorativo con il lavoratore, affermando che la sua “libertà di critica” aveva superato ogni limite. La sentenza della Corte d’appello di Bari ha successivamente confermato questa mossa estrema, sostenendo che la giusta causa era giustificata dal danno reputazionale subito dall’azienda.

What are limits to the employee's freedom of expression?

This case raises pivotal questions about the delicate balance between freedom of criticism and the legitimate needs of companies to protect their reputation. The key question is whether the employee has the right to freely express his or her opinions even when these may damage the corporate reputation.

Freedom of expression is a fundamental right, but in the work context it is often subject to limitations. Companies may legitimately regulate employees’ online behaviour when it may have an impact on reputation or the corporate workplace environment. This particular case casts doubt on the sustainability of these limitations and the need to find common ground.

The Italian Supreme Court ( Civil Cassation No. 35922/2023) recently addressed this issue, outlining some important guidelines. According to the Italian Supreme Court, criticism expressed by an employee on social media can be considered lawful, provided it respects certain basic parameters. The Court emphasised that the criticism must be related to matters of public interest or otherwise relevant to the community.

The role of "digital awareness" according to the Supreme Court

In the present case, the Italian Supreme Court ruled out the right to criticism if the phrases used by the employee were meant to harm the company’s reputation.

The Court indeed stated that: “although guaranteed by Articles 21 and 39 of the Constitution, the right to criticism encounters the limits of formal correctness that are imposed by the need, also constitutionally guaranteed (Article 2 of the Constitution) for the protection of the human person, (with the consequence) that, where these limits are exceeded by the attribution to the employer company or its managers of openly dishonourable qualities and unproven disparaging references, the employee’s conduct may be legitimately sanctioned by disciplinary action“.

The Supreme Court’s decision suggests a necessary balancing act between the employee’s right to freedom of expression and the company’s legitimate interest in preserving its reputation. The freedom to express critical opinions is recognised, but with the important caveat that this freedom cannot be absolute and unlimited.

The Supreme Court points to the need for open discussion of socially relevant issues, even if they are posed in a critical manner. The key element is the association of the criticism with issues of public interest, thus providing a solid ground for the legitimacy of the employee’s expression.

This decision also emphasises the importance of digital awareness, encouraging employees to carefully reflect on the implications of their online comments. The Supreme Court argues that constructive criticism related to issues of public interest can contribute to social debate, but it must be done responsibly.

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Publication date: 11 February 2024

Antonella Marmo

A Lawyer at the Canella Camaiora Law Firm, a member of the Milan Bar, she focuses on Commercial and Employment Law.
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