Employment Law

Employment law: confidentiality vs freedom of expression

An employment tribunal in Germany has ruled that under German employment law, the right to freedom of expression takes precedence over confidentiality clauses, if an employer has no legitimate business interest to protect.

Employment law: confidentiality vs freedom of expression © Erwin Wodicka - Fotolia -

Employment law: confidentiality vs freedom of expression © Erwin Wodicka – Fotolia –

Confidentiality clause

When an employee leaves their employment, it is not unusual for their contractual obligations to continue beyond their employment term. One such obligation is that of confidentiality.

While confidentiality clauses ensure that no harm is caused to a business once an employee has left and that legitimate business interests are protected, they often conflict with the constitutionally guaranteed right to freedom of expression.

Legitimate business interests

In a recent case, the regional employment tribunal in Rheinland-Pfalz clarified the legal position, stating that a the right to freedom of expression takes precedence over confidentiality clauses if a company is unable to justify its legitimate interests in keeping information confidential. (21.02.13 Az. 2 Sa 386/12).

The case arose after a woman, who left her position as editor of a publishing house, posted messages concerning her former employer on Facebook.

Before commencing employment, the editor had signed a confidentiality agreement stating that she would keep all internal business processes as well as trade and business secrets absolutely confidential. The clause applied during and after her term of employment.

Declaration to cease and desist

Choosing to go against the confidentiality clause, the editor reported on Facebook that the tax authorities may find the publishing house’s invoices “interesting”.

The publishing house then sent a warning letter to the ex-employee demanding she submit a declaration to cease and desist. The declaration contained a clause stating that if the woman breached the terms of confidentiality again, she would have to pay a penalty.

In April 2012, the former editor once again posted a message on Facebook stating that the editorial team consisted solely of her former boss and several illustrators who “…had nothing to do with the content of the e-paper”.

It is initially not surprising that the former employer wrote to the lady demanding she pay the contractual penalty of 25,000 euros for having breached the confidentiality agreement a second time.

No legitimate business interest

Having initially questioned the permissibility of broad post-termination confidentiality clauses, the tribunal went on to balance the competing positions between the right to freedom of expression contained in Art 5 of the German constitution (Grundgesetz) and the publishing house’s right to confidentiality under the confidentiality agreement.

According to the tribunal, the obligation to keep a former employer’s information confidential takes precedence over the right to freedom of expression only when the employer has a legitimate business interest to protect.

Here the tribunal found that the former editor had made an assertion of fact which the publishing house had not attempted to dispute. Such assertions of fact are also protected by Art 5 Grundgesetz, and if no attempt is made to dispute them, there is no demonstrable legitimate business interest to protect.

The tribunal therefore reached the conclusion that the former-employee’s second statement did not breach the confidentiality agreement.

Michael Beuger is a partner at the law firm WILDE BEUGER SOLMECKE.

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