Abstract: In recent years, there have been many cases of dispute between the employee and the employer in China resulting from the speeches made by the employee in social media. Freedom of speech is a basic right of citizens and therefore should also be protected in labor relations. However, the employee’s freedom of speech may conflict with the employer’s rights and interests and therefore should be restricted. From the perspective of labor law, the restriction on the employee’s freedom of speech is based on the employee’s duty of loyalty to his employer. Therefore, the employee’s freedom of speech needs to be balanced with his duty of loyalty and his employer’s rights and interests. In judicial practice, Chinese courts generally consider the various factors of the employee’s speech behavior in social media in judging the legitimacy of the speech. Since the freedom of speech is a basic right and the content of the employee’s duty of loyalty is flexible, establishing the boundaries of the employee’s freedom of speech requires an examination of the “four key factors” and related details of employee’s social media behavior in individual cases, including whether the behavior is in compliance with the employer’s rules on social media and the motivation, consequence and plot of the behavior and then a consideration of whether the employee’s behavior harms the employer’s interests, and whether the employee violates his duty of loyalty, which are used to judge whether the employee’s social media behavior is beyond the limit of freedom of speech and whether it is legal or not. The disciplinary measures taken by employers on employees’ social media behavior shall comply with the principle of proportionality and other principles.

Keywords:employee; social media; freedom of speech; duty of loyalty; internet

The author of this article is a research fellow at and the head of the Research Coordination and International Cooperation Department of CASS Law Institute.