CAN A HARSH FACEBOOK COMMENT BE A LAWFUL GROUND FOR DISMISSAL IN HUNGARY?

14 September 2023

Social media platforms significantly changed the ways how people express their opinions: sharing views became easier than ever. On the one hand, this is positive, but on the other hand, it is also dangerous in the employment context, as the employee's opinion may be prejudicial to the employer's interests. A recent decision of the Hungarian Supreme Court gives answer to the question whether the employer can dismiss the employee for expressing his opinion on Facebook.

1. Facts

The claimant was a professor at a Hungarian university, he was the respected member of the academic community.

A post was published on the Facebook in relation to the Center for Fundamental Rights, a Hungarian research institute and the claimant made a public comment about the Center’s analysts which among others stated that “at least they are pretty, I wonder what other functions they have”. A few days later, the claimant shared a post on his Facebook page which contained further quite offensive remarks about the Center’s colleagues.

The university, the claimant’s employer started an inadmissibility procedure against the claimant and as a result of the procedure terminated the claimant’s employment as a civil servant. According to the justification of the dismissal, the claimant made public posts and comments on a well-known social media platform which were defamatory, degrading to the female gender and violated equal treatment and the human dignity. The posts were incompatible with the university's values of respect for human dignity and gender equality and could harm the employer’s reputation.

The university sent a statement to the Hungarian News Agency commenting the claimant’s behavior, stressing that it is undignified and unacceptable.

2. First and second instance judgement

The claimant sued the employer and demanded reinstatement, alternatively damages and severance pay. Further, he requested grievance award claiming that the defendant violated his privacy rights, specifically his right to protection of personal data.

The first instance court found that the dismissal was lawful. According to the court the reputation of the defendant was seriously damaged by the fact that the claimant’s post created outrage and negative value judgements among readers, his profile included the defendant as his employer and it was widely known by his numerous followers, which created a direct link between the claimant’s post and the defendant. Nevertheless, the claimant was entitled to grievance award since the defendant infringed his right to protection of personal data when it stated in a press release the reasons for the termination of the claimant's employment.

The second instance court agreed with the first instance court’s findings and upheld the judgement. The court emphasized that the comment about women and the statements about the colleagues of the Center were capable of causing serious damage to the defendant’s reputation. In accordance with the court practice even in the absence of indicating the defendant, the claimant could be linked to the defendant institution. Further, the expression of the claimant’s opinion was not protected in view of the manner in which it was communicated, as it resulted in the violation of the fundamental rights of others.

3. The decision of the Supreme Court

The Supreme Court analysed the case based on the emerging case law and made the below conclusions.

In the Supreme Court’s view, if a user wishes to express his opinion in the social media, he is expected to do so in full awareness of the basic functional characteristics of the forum used. In the present case, although the post itself did not indeed contain the identity of the claimant’s employer, it could be found out from the claimant's profile in two clicks without any special technical knowledge, establishing the direct link between the claimant and the defendant university.

According to the highest judicial forum, in deciding the dispute, the claimant's position had to be assessed in greater detail: the claimant, as a university lecturer of recognised standing in his profession and as a member of the Senate and the Faculty Council of the defendant, is subject to higher expectations.

The publicity of the communication was also assessed. The claimant’s first comment was widely publicised by being published under a public post by a politician, and the incident was also reported by a portal. The publicity can be established in relation to the other post as well, since the claimant has hundreds of friends and followers.

The Supreme Court stressed that the content and form of expression of the communication are also reprehensible. The first comment can be interpreted as a degrading statement about women, calling into question the equal treatment of women. The second one also contains vulgar statements in an unjustifiably offensive and insulting manner, which is also not accepted by consistent case-law.

As regards the purpose of the communication, it cannot be established that it was expressly aimed at damaging the defendant's reputation. However, in terms of its effect, in particular the outcry caused among other commentators, the claimant's conduct was objectively capable of damaging the reputation of the employer: the expression of his opinion was contrary to the principles of the defendant.

4. Comment

The final judgement is in line with the evolving court practice regarding the limitations of the freedom of expression in the context of social media platforms. The Supreme Court made it clear that, given the nature of social media, namely that the link between the employee and the employer may often be easily established, employees should exercise increased caution when expressing their opinions on such platforms. Since a comment, especially if it receives a lot of publicity like in the above case, can seriously damage the reputation of the employer, the expression of an opinion in an inappropriate form and content should not be protected, and therefore may be a legitimate ground for dismissal.