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China – Social Media Posts Recognised By PRC Courts As Evidence In Employment Cases.

6 August 2014

 

Legal News & Analysis – Asia Pacific – China –  Dispute Resolution

 

Given the growing popularity of social media websites and applications in China, employees are increasingly releasing employment-related photographs and posts onto social media networks. Employers are in turn increasingly relying on social media posts made by their employees as evidence against their employees in employment-related disputes.

 

Chinese Courts have recently recognized social media posts as admissible evidence in employment disputes. In fact, a 2013 white paper on China employment litigation cited a Shanghai Court as stating that there is a rising trend of the use of social media posts as evidence.

 

In this post, we summarize three reported cases in which the Courts have recognized employee social media posts as evidence in favour of employers.

 

Case 1: Employee Posts Travel Photos On Weibo While Taking Sick Leave

 

The employer dismissed the employee on grounds of unauthorised absence from work alleging that she had lied about her health, taken sick leave and then gone travelling with her family during the period of sick leave.

 

To support its claims, the employer submitted, among other things, notarised copies of the employee’s posts on Weibo (a popular social media service provider in China) during the leave period. The posts showed that the employee was travelling with her family instead of resting or receiving medical treatment during the leave period.

 

The Court recognized the Weibo post submitted by the employer as admissible evidence and dismissed the employee’s claim for wrongful termination.

 

Case 2: Employee Makes Negative Comments About Employer On Weibo

 

The employer dismissed the employee for a material breach of the employer’s rules and regulations. The employer claimed that the employee had made negative comments regarding the employer’s business on Weibo, which the employer asserted was a material breach of the employer’s rules and regulations. The employer’s rules and regulations clearly stated that employees should not make any negative statements regarding the employer or his business on social networks.

 

To support its claims, the employer submitted screen-shots of the employee’s Weibo comments and other supporting documents in which the employee acknowledged leaving those negative comments on Weibo.

 

The Court recognized the validity of the Weibo evidence submitted by the employer, and dismissed the employee’s claim for wrongful termination.

 

Case 3: Employee Acknowledges Termination Of Employment On Weibo

 

The employee sued the employer for wrongful termination. The employer claimed that he terminated the employment relationship in October 2012 as the employee had been absent from work. No termination notice had been delivered to the employee at the time because the employee could not be located.

 

To support its claims, the employer submitted notarised copies of Weibo posts made by the employee in October 2012 in which the employee stated that he was no longer with the employer.

 

Based on the Weibo posts, the Court determined that the employment relationship had been terminated in October 2012, and that the employee acknowledged such termination although no official termination notice had been issued. The Court dismissed the employee’s claim.

 

Practical Tips For Employers- Using Employees’ Social Media Posts As Evidence

 

Employers may wish to consider reviewing employees’ social media posts when collecting evidence in employment disputes. Employers are, however advised to collect and use social media posts against employees with care. The following “dos and don’ts” should be kept in mind:

 

Dos

 

  • Collect social media posts that are publicly available or which the employer has been authorised to access
  • Verify that the relevant social media account belongs to the employee and that the relevant social media posts are in fact made by the employee or on behalf of the employee
  • Collect other supporting evidence in addition to the social media posts
  • Notarise the social media posts as notarised evidence is more likely to be accepted by Courts

 

Don’ts

 

  • Don’t access employees’ social media accounts in an unauthorised manner in order to collect evidence against the employees
  • Don’t rely on social media posts as your only evidence

 

herbert smith Freehills

 

For further information, please contact:

 

Karen Ip, Partner, Herbert Smith Freehills

karen.ip@hsf.com

 

Jasmine Chen, Herbert Smith Freehills

jasmine.chen@hsf.com

 

Helen Beech, Herbert Smith Freehills

helen.beech@hsf.com

 

Herbert Smith Freehills Dispute Resolution Practice Profile in China

 

Homegrown Dispute Resolution Law Firms in China

 

International Dispute Resolution Law Firms in China

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