Article: Free speech is a right…but subject to limits


Free speech is a right…but subject to limits

Michael Dias, Lawyer & Secretary, The Employers Association Delhi

Employees do not have the unbridled right to speak to the media and consequently bring bad reputation to the organization


How do new channels of communication change the communication rights and obligations from employees to employers?

Freedom of speech is a constitutional right, regardless of the medium of communication used; employees are free to express their opinions on professional, social or religious views. This freedom of speech is subject to limit of harming or impacting the organization.

Recently, after the Mangalore Air India tragedy, some employees spoke to the media thereby denigrating the management of the airline. Either there is truth or merit in what the employees spoke against the company or they were falsehoods. In either case, the management would be within their rights to take appropriate action as such employees were not authorized by the management to speak to the media on the subject. Hence, while the fundamental freedom of speech is guaranteed by our Constitution and remains untouched, employees do not have the unbridled right to speak to the media and consequently bring bad reputation to the organization.

Can employees use employee information posted on social/professional sites as part of recruitment/selection process or reference checks?

This process is subject to the principles of natural justice. An employer cannot take immediate action against an employee because he or she did not disclose a particular piece of information that is available on these online portals. The company will have to issue a show cause notice and the employee will need to have the opportunity to provide an explanation for the same. An employer can use employee information posted on such sites as part of the recruitment/selection process or reference checks but the same shall not be accepted as the whole truth particularly when there is a variance between what the employee stated at the time or even thereafter and what has been stated on the social professional site.

What are the grounds on which employers are allowed to deploy surveillance measures in respect of their employees?

The deployment of surveillance measures will be assessed under reasonable parameters. All information exchanged in chats, emails, videoconferencing or any other electronic means can be brought before the Court under the Evidence Act subject to its genuineness, relevance, context and applicability to the facts and circumstances of the issue at hand. Hence, citizens need to be careful as to what they post on the electronic media as the same can always be used against them if found to be false or untrue. In this regard, the basic principle is that while on the electronic media, their individual statements are addressed to the world at large.

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Topics: C-Suite, Strategic HR

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