Yttrandefrihet kontra lojalitetsplikt : Vilken princip väger tyngst när det kommer till kritiska uttalanden om arbetsgivaren via sociala medier

• Main Author: Nilsson, Nathalie
• Format: Others
• Language: Swedish
• Published: Linnéuniversitetet, Ekonomihögskolan, ELNU 2012
• Subjects: Yttrandefrihet; lojalitetsplikt; sociala medier; kritikrätt; meddelarskydd; LAW/JURISPRUDENCE; RÄTTSVETENSKAP/JURIDIK
• Online Access: http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-18142

In this paper, the legal situation regarding freedom of expression versus the duty of loyalty is investigated, this in a context where an employee makes critical statements about his employer through social media. The duty of loyalty is a part of all employment relationships and it follows implicit from the contract regardless of whether it is specified in it or not. This duty means that an employee is required to put the employer's interests before his own and avoid all situations that end up in collision of the duties. The employee may no t either act in such a way that is intended to harm the employer. This means that the employee must be even off duty careful not to appear disloyal to the employer. This may lead to that a status update on Facebook, even when made on the employee's free time, can be regarded as disloyal conduct, with the dismissal or disciplinary action as a result. Case law states that the point of departure regarding criticizing the employer must be that the employee has an extensive such a possibility to that, without that being considered as disloyal conduct. However, statements that are intended to harm the employer are considered to be disloyal conduct. Concerning the constitutionally protected freedom of expression, only those who are public employees are protected by it. This protection allows them to extensively discuss and criticize their employers. In the public sector the freedom of speech comes before the duty of loyalty. So is not the case for the employees in the private sector, since they do not enjoy the protection which the Constitution gives. The fact that an employee chooses to express his dissatisfaction through social media is not one of the valuation parameters when the Labour Court decides whether the critical statement constitutes an objective ground for dismissal. However, one can see that such a process contributes to a wider dissemination of the statement. And it can be discussed if the employee’s purpose with a Facebook comment is really to deal with grievances in the workplace.