Atty. Nguyen Thi Phuong Chung – Atty. Trinh Thu Hao
The negative news characterized as libeling corporate images and leaders have emerged and spread on the social networking and it is none other than the employees of the victimized enterprise who posted the information. If so, what to do about that case toward preventing the potential same?
Fines are to no avail.
Although an individual i.e. employee has the right to speech freedom and personal opinion, he/she is banned on acts of posting the information distorting, slandering, insulting corporate and organizational prestige by the regulations on management and use of the Internet. In case of breaching them, the violator may be subject to an administrative sanction of VND10 to 20 million. This penalty can be seen as too lenient as opposed to the aforesaid incalculable damages triggered by these acts to any enterprise.
From the civil law perspective, Article 604.1 of the Civil Code provides that “any person who intentionally or unintentionally infringes upon the life, health, honour and prestige of the legal entity or other subject that causes damages must compensate”. Thus, to determine the employee’s conducts as sufficient factors for attributing him/her a compensation for non-contractual damages, we need to consider such factors as: (i) damages have occurred. Damages may include material damages and non-pecuniary damages (corporate honour and prestige being diminished because of misunderstanding) (ii) his/her unlawful acts have been done (iii) a causal relationship between the damage caused to enterprises and his/her unlawful acts and (iv) his/her intentional or unintentional faults.
In this case, fully demonstrating the above four factors is not simple for any enterprise. For example, it is hard to prove non-pecuniary losses, those of corporate honour and reputation because they are purely qualitative rather than of a quantifiable nature.
In addition, even when the company can prove all said elements, the compensation level to offset the corporate loss is the first to be agreed by the parties. If no agreement is reached, the offsetting compensation level must be based on the loss extent, but it shall not exceed 10-month common minimum wages prescribed by the State at the time of claim settlement. These compensation levels as opposed to the damages suffered in the wake of the employee’s acts of defamation and libel seem just “to no avail”.
How to prove damages?
From the labour law perspective, the 1994 Labour Code including the amendments, supplements and guidelines or the current Labour Code passed by the National Assembly in 2012 did not cover any regulation on this issue. These documents only provide the enterprises are required to respect the employee’s honour but the employee otherwise are only required generally to comply with rules on labour discipline and internal labour regulations. In fact, many enterprises have implemented some forms of dealing with employees’ misconducts in which the most common case is to unilaterally terminate the labour contract with or dismiss the employees.
However, it should be noted that under the current labour law, there is no legal basis for the enterprise to unilaterally terminate the labour contract with the employee in case of the employee’s behaviours of corporate libel or denigration on social networking sites or online forums. Enterprises can fire him/her only if the employee displays “acts causing or threatening to cause particularly serious damage to the assets and interests of the employer”. Nonetheless, only proving these damages resulting from the employee’s acts of posting adverse information of the enterprise on the forums and social networking sites has been a near impossible task as mentioned hereof.
And prevention is the best solution
In this situation, enterprises may choose to apply other forms of labour discipline in accordance with the law such as reprimand, salary increase extension without exceeding six months or demotion of the employee committing the behaviour of posting adverse information of the enterprise on the social network sites and forums. However, aiming at the grounds for disciplinary action, enterprises must define the acts as violating labour discipline in their internal labour regulations and register it with the local state management bodies.
In the process of developing regulations on the employee’s violations of posting the enterprise-smearing information, it is necessary to clarify guidelines related to the social networks and the media, define how the enterprise-harming information is, must-not-dos for employees and discipline forms in case of their breaches. After their valid registration, the internal labour regulations will be posted on the corporate message board (if any) by the enterprise and each employee will be provided one copy of the registered internal labour regulations for his/her reference. At the same time, enterprises need to notify them to the employee collective therein. The enterprise may require each employee to sign an acknowledgment of receipt of the internal labour regulations and confirm that he/she will comply with this policy, which is used as supporting evidence in case of subsequent labour discipline actions.
 Article 6.1.c of the Decree No. 97/2008/ND-CP dated August 29, 2008 of Government on management, provision and use of Internet services and electronic information on the Internet and Article 4 of the Circular No. 14/2010/TT-BTTTT dated June 29, 2010 of the Ministry of Information and Telecommunications detailing a number of articles of 97/2008/ND-CP
 Article 6.5. (b) of the Decree No.63/2007/ND-CP dated April 10, 2007 by the Government on administrative sanction in the area of information technology
 Item 3.3.c of the Resolution 03