Hypothesis 1 is that in the case of SNSs, the collision between the employees’ rights and the employer’s rights appears in a more intense form compared to the “traditional”
methods of employee monitoring. It was already mentioned that the employee has certain rights (right to privacy and right to data protection) that must be balanced against the employer’s rights (e.g. right to control and monitor, right to reputation, protection of business secrets, etc.). In the case of monitoring SNSs, due to the increasingly blurred boundaries of work and private life, this collision of rights is more intense than in the case of “traditional” employee monitoring, both from the employees’ and the employer’s point of view. Through allowing being available all the time, ICT (and SNSs) blurred the boundaries of work and private life:69 they did not only allow work to flow into the private life of the employees but vice versa.70 From the employees’ perspective, a change of paradigm in the scale of employee monitoring can be observed, as the control and monitoring of SNS use not only goes beyond the physical workplace and the physical working hours, but also constitutes a more severe intrusion into employees’ private lives due to the role SNSs play in modern societies. As on SNSs employees often share details regarding their private lives, controlling and monitoring provide the possibility for the employer to glimpse into the employees’ private lives to an unprecedented extent. From the employer’s perspective, the employer’s rights are increasingly at stake as well for several reasons. In relation to the right to property (and the use of the employer’s equipment according to the purpose of the employment relationship), the respect of working hours and the appropriate use of the employer’s equipment must be mentioned.
With this urge to be connected all the time, a change of paradigm took place, as SNSs can create a veritable addiction resulting in employees spending their working hours on these platforms, and failing to perform one of the main obligations arising from the employment
69 Rey, B. (2013) ‘La vie privée au travail. Retour sur la place du privé en contexte hiérarchique à l’ère du numérique’, Les Cahiers du numérique, 9(2), p. 108.
70 El Wafi, W. (2016) Perméabilité des frontières vies « personnelle et professionnelle » et usage des TIC : modèles d’articulation. Université de Lorraine, p. 13., p. 15.
30 relationship might possibly lead to the termination of their employment.71 As regards the employer’s right to reputation, SNSs provide a unique platform for employees to express themselves. While prior to SNSs such expressions usually took place either in an oral form or in front of a small audience (e.g. gossiping with or complaining to friends or colleagues), SNSs brought a change of paradigm through fundamentally altering the publicity and the discoverability of such expressions. As a result, both parties of the employment relationship are more intensely interested in enforcing their rights, as the possible harm – on both sides – is more significant than prior to the age of SNSs.
13. The remaining hypotheses relate to the examined matters of the employment relationship and SNSs. Hypothesis 2 holds that in the phase of recruitment, the protection of job applicants’ rights can be better ensured through regulating pre-employment SNS screenings, instead of prohibiting them. As it will be addressed in detail, applying pre-employment SNSs screenings raise several (privacy) and data protection challenges. As a response to these challenges, different solutions were proposed from the complete ban of these screenings,72 through acknowledging their existence,73 to the involvement of an independent third party in the decision-making.74 Due to the difficulties connected to the enforcement of a prohibition (e.g. invisibility of background checks), the dissertation holds that adopting a more flexible regulation, through aiming to make employers realize that respecting data protection requirements will lead to more reliable decision-making, is a more effective way to protect job applicants’ rights instead of completely prohibiting these searches.
71 As it is demonstrated by the number of cases related to the personal use of the employer’s computer/Internet connection, more precisely employees surfing Facebook during working hours instead of performing work.
72 Gros, M. (2010) Recrutement : une Charte pour contrer les dérives liées aux réseaux sociaux, Le Monde Informatique. Available at: https://www.lemondeinformatique.fr/actualites/lire-recrutement-une-charte-pour-contrer-les-derives-liees-aux-reseaux-sociaux-29715.html(Accessed: 13 August 2019); CNIL (no date) Recrutement : l’employeur peut-il rechercher des données sur moi sur Internet ? Available at: https://www.cnil.fr/fr/cnil-direct/question/354.; Kajtár, E. and Mestre, B. (2016) ‘Social networks and employees’ right to privacy in the pre-employment stage: some comparative remarks and interrogations’, Hungarian Labour Law E-journal, (1), p. 36.; McGeveran, W. (2006) Finnish Employers Cannot Google Applicants. Available at: https://blogs.harvard.edu/infolaw/2006/11/15/finnish-employers-cannot-google-applicants/ (Accessed: 2 July 2018)
73 Information Commissioner’s Office (2011) The employment practices code. Available at:
https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf(Accessed: 8 October 2018), p. 23.;
NAIH (2016): A Nemzeti Adatvédelmi és Információszabadság Hatóság tájékoztatója a munkahelyi adatkezelések alapvető követelményeiről, p. 19.
74 Ebnet, N. J. (2012) ‘It Can Do More Than Protect Your Credit Score: Regulating Social Media Pre-Employment Screening with the Fair Credit Reporting Act’, Minnesota Law Review, 97(1), p. 327.
31 14. Hypothesis 3 intends to prove that in most regards, the personal use of SNSs during working hours can be adequately addressed through the already existing rules relating to the monitoring of Internet and e-mail use, as all of them are Internet based. No specific law aiming to regulate SNSs exists either in France, or in Hungary: in both countries the general labour law and data protection rules are applicable to these relatively new platforms. Although SNSs put the existing provisions into different light and raise questions regarding their exact application and possible adjustments, it is the matter of personal SNS use at the expense of working hours where the already existing rules need the least adjustment, as in most regards75 the already elaborated regulations to the personal use of Internet and e-mail can be adequately applied to SNSs.
15. Hypothesis 4 aims to prove that as regards employees’ activities and presence on SNSs76 mainly beyond working hours, in the light of the intensification that SNSs brought to the collision of rights, employers have found themselves in an even more vulnerable position, rendering it necessary to tilt the balance towards the protection of employer’s rights. Although the limits of employees’ off-duty conduct are already determined both in France and in Hungary, SNSs put these existing rules into new light. In connection with the intensified collision between the employee’s and the employer’s rights (particularly the right to reputation), the dissertation holds that these changes put the employer into an even more vulnerable position.
16. As the outcome of the research, the dissertation aims to answer two main research questions. First, in the light of the more intense collision of rights and interests (whether and) how the employer is entitled to control employees’ conduct on online SNSs with regard to their right to privacy. Second, in the light of the more intense collision of rights and interests, (whether and) how the employer can process employees’ personal data obtained from these platforms?
17. Methodology used and structure of the dissertation. The research is based on a mixture of descriptive-analytical methods, as the dissertation systematically examines the existing legal framework while it also contains the critical evaluation of the relevant legislation, court decisions, soft law documents or academic literature. The primary
75 Also, the differences and specific characteristics of SNSs will be examined in detail.
76 For example, through posting, sharing, liking either matters directly relating to the workplace (e.g. opinion on or criticism of the employer) or matters indirectly relating to the workplace (e.g. posting racist content, etc.).
32 sources of the research were international, European (EU and Council of Europe), French and Hungarian legislation, jurisdictions and doctrine. Amongst the secondary sources a wide range of publications was used, especially focusing on – but not limited to77 – the works of French and Hungarian scholars. It should be noted in the beginning that one of the greatest difficulties (and differences between the two examined countries) was that while in France courts – both lower and supreme – already addressed cases related to SNSs in a number of cases, in Hungary such cases are very recent.78, 79 Also, brief outlooks to other European or international cases and proposed solutions will be made in order to enrich the research. Furthermore, as the examined phenomenon is universal, in order to raise awareness to certain universal aspects of the subject, these sources will be referred to as well – while keeping France and Hungary in the focus of the dissertation. When examining these norms, throughout the dissertation several criteria will be taken into consideration and followed when determining the order of discussion. Usually the analysis of a sub-topic will start from the international (universal, regional) norms before focusing on national ones. Also, first general matters will be discussed before examining more specific ones. The analysis will also move from the analysis of the legal framework to existing jurisprudence and existing practice of the data protection authorities or other authorities.
18. In relation to the terminology used, as today the most popular SNS is Facebook, throughout the thesis references will often be made to Facebook instead of SNSs in general, as well as Facebook terminology will often be used.
19. As regards the structure, the dissertation is composed of two Parts: Part I.
analyses the collision of the rights, while Part II. focuses on how this collision is manifested particularly in the context of SNSs. Part I. will examine the collision of rights in detail, through analysing the colliding rights both on the side of the employee and the employer and will address how this collision is influenced by the innovations of ICT. Part I. provides the conceptual and theoretical background of the research. More precisely, Part I. will address (1) the conceptual fundaments of the two sides of the collision: the right to respect for private life, right to data protection and employee monitoring and then (2) will
77 The dissertation also contains sources in English from several authors outside these two countries, especially from Europe and the United States, as the examined phenomenon is universal.
78 Particularly, the case should be mentioned where a Hungarian prosecutor was dismissed due to three (political) Facebook posts. The case will be discussed in detail in Part II.
79 This also applies to publications, as in Hungary the number of publications related to the subject of employee monitoring and SNSs is lower compared to France.
33 examine how this collision has become more intense, and how the boundaries of work and private life have become increasingly blurred due to ICT, particularly to SNSs.
After addressing the conceptual and theoretical foundations, Part II. will especially focus on this collision in relation to SNSs and will analyse French and Hungarian law regulating the right to privacy and right to data protection during the controlling and monitoring of the use of SNSs in the employment context. Part II. identifies the main areas where specific challenges arise regarding employee control and monitoring and SNSs, aiming to provide an extensive analysis covering the conclusion, management and termination of the employment relationship. Three subjects will be examined in detail: (1) recruitment and the protection of prospective employees’ rights, (2) SNS use at the expense of working hours and (3) off-duty conduct and SNSs. It will be explored, in the light of the collision of rights and interests presented in Part I., where exactly boundaries are/should be established in France and Hungary; what privacy and/or data protection questions arise and what answers can be provided to them.
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