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Published 27 February 2015
For the first time in Portugal, a judicial decision was issued and further confirmed by a higher Court, ruling in generic terms, that an employee’s offensive comments towards the employer posted on Facebook could be a legitimate ground for the employee’s dismissal.
From September to December 2012, the employee posted comments regarding the employer, within a private Facebook group composed by 140 members, all of which were employees or former employees of the company. In fact, the employee in question, who was administrator of such group, posted several offensive comments regarding the company, colleagues and superiors.
The Court found that the comments posted on Facebook were offensive to the image, dignity and good name of the employer, its representatives and some employees. In Court, the employee argued that the "right to privacy" and "freedom of expression" should prevail, therefore invoking the nullity of the dismissal since the comments were made within a closed group.
However, the Court did not accept the employee’s arguments, taking the understanding that posting text/comments addressed at a potential universe of 140 people could not be deemed as a personal and private communication. Since the comments could be shared, copied and exported, the Court understood that the employee could not expect privacy and, therefore, the employee should be aware that publications with possible implications of a professional nature (particularly when defamatory to the employer, co-employee or superiors), could spill over the borders of a "group" created on Facebook. Consequently, the Court ruled that the employee had no right to invoke the private nature of the Facebook group or the "personal" nature of its posts, therefore considering that the comments were deemed as public communications.
After this innovative decision, other decisions were issued in the same direction.
Supplied by Magda Cocco (email@example.com), Inês Antas de Barros (firstname.lastname@example.org) or Maria de Lurdes Gonçalves (email@example.com) of Vieira de Almeida & Associados – Sociedade de Advogados, R.L in Lisbon, Portugal.
¹Please note that this is the date of the first judicial decision and other decisions with similar content have been issued after this one
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