The Shifting Landscape of Employee Privacy: Private chats vs. Social media Posts
The line between personal interaction and employer oversight is becoming increasingly blurred, notably when it comes to digital interactions. Recent legal developments in Italy highlight a growing tension between employee privacy and an employer’s right to maintain workplace discipline. This article explores the current understanding of what constitutes protected communication, specifically focusing on the distinction between private chats and posts on social media platforms like Facebook.
The Protection of Private Chats
Italian law firmly protects the confidentiality of private communications. A closed communication, where a legitimate expectation of confidentiality exists, cannot be used for disciplinary action, even if disclosed by one of the participants. This principle stems from the understanding that these exchanges are akin to private correspondence. The court of Cassation has affirmed this, stating that content shared in a private chat cannot be leveraged by an employer who has gained access to it. This protection extends to platforms like WhatsApp,Telegram,and SMS.
What Differentiates a Facebook Post?
The legal protection afforded to private chats does not automatically extend to social media posts. Unlike a private chat,a Facebook post,even with restrictive privacy settings limiting visibility to “friends,” is inherently intended for potential and uncontrollable dissemination. It’s not a secret exchange between two individuals, but content shared on a platform designed for sharing.
Consequently, courts have consistently held that the same guarantee of secrecy applicable to private correspondence cannot be invoked for social media posts. The expectation of confidentiality is demonstrably lower due to the platform’s very nature.
A new Direction from the Privacy Guarantor
A recent decision by the Italian Privacy Guarantor (dated may 21, 2025) has introduced a significant wrinkle into this established understanding.The case involved a motorway company that used both WhatsApp chat screenshots and a colleague’s Facebook posts as evidence in a disciplinary dispute.
In a departure from previous rulings, the Guarantor sanctioned the company, asserting that phrases written on both WhatsApp and Facebook should always be considered covered by a confidentiality expectation, rendering any employer use of the content illegal.
This decision, if strictly interpreted, creates a broad ”shield” of protection, effectively equating the privacy of a private chat with the semi-public nature of a Facebook post. This position has been met with skepticism, as it appears to contradict established jurisprudence, including rulings from the Court of Cassation. Equating a social media post, designed for potential sharing and comment, to a sealed letter seems a significant overreach.
A more reasoned approach, consistent with existing legal precedent, continues to distinguish between:
* Private Chat: Considered correspondence and therefore inviolable.
* Facebook Post: A form of expression in a “virtual” public space (even with a limited audience), resulting in a substantially weaker expectation of confidentiality.
Conclusion: A Minefield of Uncertainty
The current legal landscape surrounding employee digital privacy is complex and uncertain.
Private chats (WhatsApp, Telegram, SMS) remain protected: Their content cannot be used for disciplinary purposes, even if disclosed by a participant, according to the Court of Cassation.
Facebook posts are in a gray area: While historically considered perhaps usable if legally obtained, the recent and controversial decision by the 2025 Privacy Guarantor has cast doubt on this, claiming they too are covered by a confidentiality expectation.
This Guarantor decision is not a final judgment and is likely to be challenged in court. For employees, this means that while one-on-one communications enjoy strong privacy protections, extreme caution is advised regarding anything published on a social media platform, even if set to “private.”
