BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Social media has become a global issue, and the Bărbulescu judgment has rightfully attracted much press interest. It has also been widely reported, which permits us to ignore the actual facts to a certain degree (as most newspapers have done). Our aim is to boldly go where no publication has gone before. An employer’s right to snoop-then- dismiss has not yet been considered sufficiently in light of different Central and Eastern European legal traditions. This chapter explains the ins and outs of off-duty conduct and employee rights based on the Bărbulescu case with regard to different legal cultures in former communist countries, such as the Czech Republic, Poland, Romania, and Slovakia. In these countries, regulations on privacy for certain types of private, off-duty activities are stricter and more protective (the first section of this chapter). Although the extent to which an employer can use social media to monitor an employee’s use of social media (in and outside of the workplace), and the repercussions for employers and employees where social media is misused (the second section of this chapter) vary from country to country, there is a commonality in all four countries (and this chapter): constitutional and union protection (Section 2 of this chapter), codified labour laws (Section 3), the addition of layers of protection in civil codes and data protection acts (Section 4), and the statutory duties to work and not to misuse employers’ devices (Sections 5 and 6). Momentum has built up, and this prompts politicians to make decisions. Individuals have already lost jobs because of posts or comments on social networking sites. Although Mr Bărbulescu was “Yahoo fired” in accordance with the law and the Convention for the Protection of Human Rights and Fundamental Freedoms, it is time to review the law and employer policies. As technology transforms our work and personal lives, these laws and policies will need to be flexible and reviewed regularly to keep up with the ever-changing social media landscape. 2. Constitutional, International, and EU Protection Partly due to the shared history and close legal tradition (especially between Czechs and Slovaks who established a common state in 1918), and partly because of both international obligations 7 and the level of harmonisation with EU law, 8 all four Central and Eastern European countries react alike in their respective regulations. Privacy is protected on the constitutional level in Articles 7 and 10 of the Czech Charter of Fundamental Rights and Freedoms, 9 Articles 19 and 21 of the Slovak Constitution, 10 Articles 26 and 28 of the Romanian Constitution, 11 and also in Article 10 of the Slovak 7 Concerning the European legal system, the right to respect one’s private and family life is embedded mainly in Article 8 of the European Convention on Human Rights. All four countries ratified the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 8 See Directive 95/46/EC. 9 The Charter of Fundamental Rights and Freedoms was adopted as an appendix of the statute No. 23/1991 Collection. Regarding the extraordinary situation during 1992, when the Charter’s predecessor in the Czech Republic was abolished, the Charter was declared again on 16 December 1992 as a component of the Czech constitutional order (Manifestation No. 2/1993 Coll.). The Charter was amended by Act No. 162/1998 Coll. In fact, the Charter has the same legal effect as the Czech Constitution. 10 Act No. 460/1992 Collection as amended. 11 The Constitution of Romania was adopted in the constituent assembly session of 21 November 1991

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