The use of social media: private or not? This question is being posed increasingly, whether or not in relation to non-solicitation and secrecy clauses contained in employment contracts. In my contribution of 3 April 2012, I drew your attention to a ruling of the Court of Appeal in The Hague, in which a distinction was made between the use of LinkedIn and Twitter. In that case, the employee did not breach the provisions of the non-solicitation clause with his tweets. The Subdistrict Court in Maastricht was of the opinion that ‘conversations’ via social media must be considered as private and therefore fall under the fundamental right of freedom of expression, unless a commercial character is explicitly evident. Once again it was concluded that the non-solicitation clause was not breached.

In this case the ex-employer (a dance school) argued that in contravention of his non-solicitation clause the employee had actively approached students to persuade them to transfer to his school of dance. In proceedings the employer submitted prints of Hyves, Facebook and Twitter, on the basis of which such was apparently evident. The Court was of the opinion that from the submitted, printed pages it was evident that the employee maintained contact with the persons listed on those pages, but that it was not evident that he had actively approached those persons. In expressing this opinion, the Subdistrict Court considered that conversations via social media, such as Hyves, Twitter, Facebook, WhatsApp, etc., must in principle be considered as occurring in the private sphere of the parties concerned – and therefore falling under the fundamental right of freedom of expression – unless a commercial character was clearly evident and unambiguous therefrom to every party. In this case the employee, for instance, should have explicitly asked his contacts on those media (friends), if already registered at the employer, to transfer to his dance school. This was not evident to the Subdistrict Court.

Unfortunately, it is not evident from the judgment what the substance of the contacts via social media entailed. The Court sets the bar for breaching the non-solicitation clause very high; persuading others to transfer must be literally evident. The employer will most likely not appreciate informal, friendly contacts with customers. It will increase the temptation to transfer. On the other hand, social media are making it simply easier to maintain contacts with a variety of individuals. Whereas that need not result in a breach of a non-solicitation clause, I wonder whether the request to transfer must be literally evident from the contact. It can also be evident from the entirety of circumstances that an employee is actively recruiting.

Jokelien Brouwer