INTRODUCTION
The rising tide of social media usage reveals the power to connect and the challenges to disconnect, urging us to find a balance in a world constantly online. As India climbs the socio-economic ladder, social media usage has increased drastically. It is a mirror, reflecting society’s evolving dynamics, and offering endless opportunities for expression, connection, and awareness. Andrew Weinreich, the inventor of the first social media site SIX DEGREES in 1997, would not have thought that social media would become such a cult in the 21st century.[1] From creating a site to connecting with friends online, social media has redefined the hiring landscape, turning platforms like LinkedIn and Instagram into a modern-day talent marketplace. While offering job seekers a chance to shine through their digital presence, it also poses a threat of being terminated from the job based on what you post online.
CAN YOU BE FIRED FOR YOUR SOCIAL MEDIA POST?
As of 2025, around 5.22 billion people use social media, accounting for 63.8% of the global population[2]. 91% of employers currently use social media for the hiring process. In the last year, 79% of job seekers have used social media in their job search. While this openness fosters creativity and dialogue, it blurs the line between personal and professional boundaries[3]. In today’s world, companies are very cautious about their digital image. Digital image refers to the online presence and reputation in the digital space. It is critical for their brand identity, customer perception, and marketability. Maintaining a strong, positive digital image is crucial for customer trust, brand loyalty, and overall success in the digital age. The employees have a duty of loyalty to the company. So, posting inappropriate content or offensive remarks like hate speech or discriminatory comments can land a person into trouble, causing penalties and even termination from the job if it violates any provisions of law. Recently, a Redditor shared their disheartening experience of getting fired only after 2.5 months at a Bengaluru-based start-up. In their post, the former employee claimed that they joined the start-up as a fresher with 6 months of internship experience. They were hired as a “frontend developer” and were immediately assigned a stack of tasks that left them exhausted.[4]
RIFT BETWEEN FREEDOM OF SPEECH AND EMPLOYMENT RIGHTS
In today’s world, being opinionated is considered an important virtue as it reflects self-awareness, critical thinking, and a sense of individuality. The Constitution of various countries ensures Freedom of Speech as a Fundamental Right of the individual in India, we have Freedom of Speech under Article 19[5]. But this right is subject to certain restrictions. The revealing of confidential contractual data like the monetary aspect of open, imminent, or completed projects or the disclosure of key business aspects of the employer or the company can make the employee liable as it tarnishes the organization’s positive image. To protect intellectual property, trade secrets, and other confidential information, the companies get non-disclosure agreements signed by their employees. A non-disclosure agreement (NDA) is a legal contract that protects sensitive information from being shared or used without permission. Therefore, various countries have tried to strike a balance between freedom of speech and employer’s rights in the following ways-
- IN THE UNITED STATES– The First Amendment of the US Constitution, 1791 protects freedom of speech but it does not shield employees from the consequence of their inappropriate social media posts[6]. The Defend Trade Secrets Act (DTSA) of 2016, enables trade secret owners to initiate civil lawsuits in federal court for misappropriation of their trade secrets. Employers have a right to sue private employees for their online behaviour that reflects poorly on the company.[7].
- IN THE EUROPEAN UNION (EU)– Under the European Convention on Human Rights, individuals have the right to free expression but this right is subject to restrictions when it conflicts with other’s rights or company’s interests. Also, The General Data Protection Regulation (GDPR) in the EU is the strongest privacy and security law in the world. It was adopted in 2016 and was enforced on 25 May 2018.[8] Under this, Courts have upheld the employer’s right to terminate employees who engage in hate speech or discriminatory behaviour online.
- IN INDIA– As of today, there is no specific law regulating social media activity in the workplace. However, employers may terminate employees if their posts violate company policies, the Information Technology Act of 2000[9], or the Bharatiya Nyaya Sanhita of 2023[10], which prohibits hate speech and defamation[11]. Also, The Indian Contract Act, of 1872, ensures that if non-disclosure agreements are breached the company can take legal action, including termination of the person breaching it.[12]
POSTING DURING WORK HOURS
Posting during work hours may be a signal that one is not focused on their work. Companies have social media policies that emanate various rules, guidelines, and expectations from employees regarding their use of social media platforms. While some companies relax their policies, many monitor employees’ online activity and can take action if they feel that productivity is being hampered. In the US, employers can monitor company-owned devices and can terminate employees if productivity is being hampered.[13] In the European Union, employers are required to respect employees’ privacy rights. However, they are permitted to monitor employees’ online activities within legal limits, provided certain conditions are met.[14] In India, companies can include clauses in employment contracts limiting social media usage during work hours.
LEGAL IMPLICATION IN INDIA
Although the concept of ‘Privacy’, ‘Sensitive Personal Information’, and ‘Anti-discrimination’ are recognized in India, the law regarding social media use is still in an emerging phase in India and is likely to be guided by international developments in this regard.
Since personal information is the manifestation of an individual’s personality, the courts have recognized the ‘right to privacy’ as an integral part of the ‘right to life and personal liberty’ a fundamental right guaranteed under Article 21 of the constitution of India.[15] There are certain other legislations relating to social media and employment which are-
- Information Technology Act 2000[16]– It includes provisions that address the issue of data protection and privacy. Under this:
- Section 43A [17]States that a company or other body corporate can be liable to pay damages if they are negligent in protecting sensitive personal data.
- Section 67[18] Penalizes publishing obscene content online, which could affect employment if it breaches workplace policies.
- Section 72A [19]Punishes the disclosure of personal information without the consent of the person concerned, in breach of a lawful contract.
- Bharatiya Nyaya Sanhita 2024[20]
- Section 356(1) and 356(2)[21]– It deals with Defamation, which can be invoked if a post harms a company’s reputation[22].
- Section 353[23]– It penalizes statements that incite fear or hatred, which could extend to misinformation in the workplace[24].
- Labour Laws- The Industrial Employment (Standing Orders) Act of 1946[25] allows employers to create rules regarding employee conduct, including social media behavior[26].
- Equal Remuneration Act, 1976[27]– It prohibits discrimination based on sex in employment including recruitment. Therefore, it ensures that information obtained by social media about employees for recruitment does not violate the provisions of this act[28].
CASES REGARDING SOCIAL MEDIA FIRINGS WORLDWIDE-
- James Gunn (2018)- Disney fired the director of the “Guardians of the Galaxy” franchise for the resurfaced tweets containing controversial and offensive remarks. Although he was later rehired, the incident highlighted how past posts can resurface to impact one’s career[29].
- Justine Sacco (2013)- A senior PR executive tweeted an offensive remark before boarding a flight. By the time she landed, the post had gone viral, leading to her termination.[30]
- Infosys Employee Dismissal (2020)- An employee was terminated for an inflammatory social media post that encouraged the spread of COVID-19. Infosys stated that the individual’s social media activity was against the company’s code of conduct and its commitment to responsible social sharing[31].
CONCLUSION
Social media has now become a powerful tool for self-expression. It gives its users the power to create and consume diverse forms of information but with power comes responsibility. While Social media platforms give both the Employer and Employees the advantage of talent recruitment, employer branding, and networking opportunities, they also have certain ethical responsibilities.
The employer can fire their employees for their social media posts based on Damage to reputation, Confidentiality breach, Policy violation, etc. However, the Employer should try to Balance Monitoring with Privacy, ensure fair enforcement of social media policies, and provide training to employees on the downsides of using social media.
The Employees also have the duty of loyalty toward their organization and if they have signed an NDA, they can be held liable for its breach. Therefore, they should be cautious while posting content that would be linked to their workspace or employer. Ultimately, the key lies in striking a balance between personal freedom and professional accountability.
Author(s) Name: Riddhima Shukla (S. S. Khanna Girls’ Degree College, Prayagraj (Affiliated to the University of Allahabad))
References:
[1] Andrew Weinreich, ‘LINE vs. Facebook and The Future of Social Networking’ (Forbes, 15 July 2016) <https://www.forbes.com/sites/andrewweinreich/2016/07/15/line-vs-facebook-and-the-future-of-social-networking/> accessed 22 March 2025.
[2]DataReportal, ‘Global Social Media Statistics 2025’ (DataReportal, January 2025) <https://datareportal.com/social-media-users> accessed 22 March 2025.
[3] Fortune, ‘How to Use Social Media to Network and Find a Job’ (Fortune, 20 February 2025) <https://fortune.com/2025/02/20/how-to-use-social-media-to-network-find-job/> accessed 22 March 2025.
[4] NDTV, ‘Software Developer Says Fired from Startup After 2.5 Months, Reddit Post Goes Viral’ (NDTV, 28 November 2024) < https://www.ndtv.com/offbeat/software-developer-says-fired-from-startup-after-2-5-months-reddit-post-goes-viral-7127642 > accessed 12 January 2025.
[5] Constitution of India 1950, art 19.
[6] US Constitution Amend I (1791).
[7] Reuters, ‘What to Do When US Employees Engage in Bad Behavior on Personal Social Media Accounts’ (Reuters, 16 September 2024) <https://www.reuters.com/legal/legalindustry/what-do-when-us-employees-engage-bad-behavior-personal-social-media-accounts-2024-09-16/> accessed 22 March 2025.
[8] Council of the European Union, ‘What is the GDPR?’ (Council of the European Union) <https://www.consilium.europa.eu/en/policies/data-protection/data-protection-regulation/#:~:text=data%20protection%20rules-,What%20is%20the%20GDPR%3F,application%20on%2025%20May%202018 > accessed 13 January 2025.
[9] Information Technology Act 2000.
[10] Bharatiya Nyaya Sanhita 2023.
[11] TOI Education, ‘Employee fired for liking a LinkedIn post: How social media activities can cost you a job, legal perspectives, and more’ The Times of India (New Delhi, 18 September 2024) < https://timesofindia.indiatimes.com/education/news/employee-fired-for-liking-a-linkedin-post-how-social-media-activities-can-cost-you-a-job-legal-perspectives-and-more/articleshow/113458165.cms > accessed 13 January 2025.
[12] Indian Contract Act 1872.
[13] Business News Daily, ‘Employee Monitoring: Privacy Laws, Pros & Cons’ (Business News Daily, 2025) <https://www.businessnewsdaily.com/6685-employee-monitoring-privacy.html> accessed 22 March 2025.
[14]ICO, ‘Employee Monitoring: Is It Right for Your Business?’ (Information Commissioner’s Office, 2025) <https://ico.org.uk/for-organisations/advice-for-small-organisations/whats-new/blogs/employee-monitoring-is-it-right-for-your-business/> accessed 22 March 2025.
[15] Kharak Singh v State of Uttar Pradesh (1963) AIR 1295 (SC)
[16] Information Technology Act 2000 (India), ss 43A, 67, 72A.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Bharatiya Nyaya Sanhita 2024, ss 356(1), 356(2), 353.
[21] Ibid.
[22] Bharatiya Nyaya Sanhita 2024, s 356.
[23] Ibid.
[24] Bharatiya Nyaya Sanhita 2024, s 353.
[25] Industrial Employment (Standing Orders) Act 1946 (India).
[26] Industrial Employment (Standing Orders) Act 1946 <https://labour.gov.in/sites/default/files/Industrial-Employment-Standing-Orders-Act-1946.pdf > accessed 14 January 2025.
[27] Equal Remunerations Act 1976 (India).
[28] Equal Remuneration Act 1976 < https://labour.gov.in/sites/default/files/equal_remuneration_act_1976.pdf > accessed 14 January 2025.
[29] Dominic Patten, ‘James Gunn Fired from “Guardians of the Galaxy” by Disney Over Offensive Tweets’ (Deadline, 20 July 2018) < https://deadline.com/2018/07/james-gunn-fired-guardians-of-the-galaxy-disney-offensive-tweets-1202430392/ > accessed 14 January 2025.
[30] Amanda Holpuch, ‘PR Executive Fired Over Racist Tweet about Aids in Africa Apologises’ (The Guardian, 22 December 2013) < https://www.theguardian.com/world/2013/dec/22/pr-exec-fired-racist-tweet-aids-africa-apology > accessed 14 January 2025.
[31] ‘Infosys Sacks Employee Over Inappropriate Post on Social Media’ (Hindustan Times, 28 May 2020) < https://www.hindustantimes.com/business-news/infosys-sacks-employee-over-inappropriate-post-on-social-media/story-KltWvP7FSl787uXeprLOJN.html > accessed 14 January 2025.
