Criticising your employer is (almost always) a right

Where freedom of expression ends

The employee’s right to criticize is rooted in the constitutional principles of freedom of expression. Article 21 of the Italian Constitution guarantees to “everyone the right to freely express their thoughts in speech, writing, and any other means of dissemination.”

The same principle is reiterated by Article 10 of the European Convention on Human Rights, which protects freedom of expression at the supranational level.

Article 1 of the Workers’ Statute also confirms this protection, recognizing the right to opinion in the workplace.

But how do these rights apply in the corporate reality? The case law of the Italian Supreme Court has gradually clarified when employee criticism is legitimate and when, instead, it may constitute sanctionable conduct.

In several rulings (Cass. no. 12420/2008, no. 1434/2015, no. 38215/2021), the Supreme Court acknowledged that the expression of critical thought naturally implies disapproval, which may affect the honor or reputation of the recipient. However, this does not mean that criticism should automatically be censored:

“[…] any criticism directed at a person is capable of affecting their reputation and, nevertheless, excluding the right to criticize whenever it even minimally undermines another’s reputation would mean denying the right to freely express one’s thoughts.”

In other words, criticism may be unpleasant or biting, but it remains lawful as long as it does not slip into insult, slander, or gratuitous provocation.

Lawful or sanctionable criticism? The three criteria of the Italian Supreme Court

Case law has identified three fundamental criteria that define the legitimate exercise of the right to criticize by the employee. These criteria – frequently recalled by the Italian Supreme Court – mark the boundary between lawful dissent and sanctionable conduct:

• Substantial moderation (truthfulness):
  Criticism must be based on true facts, or at least facts reasonably believed to be true in good faith by the employee. If reproaches rest on non-existent or deliberately falsified circumstances, it amounts to defamation or slander, and the right to criticize ceases to exist.
• Formal moderation:
  The language used must be respectful in form, even when expressing strong disagreement. Harsh or polemical expressions are allowed, as long as they do not degenerate into personal attacks, vulgarities, or gratuitous insults. For example, an employee who attributes dishonorable qualities to the company or its managers, using defamatory or obscene terms, exceeds this limit (Cass. no. 1379/2019).
• Relevance:
  Dissent must be pertinent and related to the workplace. Criticism of work organization, operating conditions, or management methods is legitimate; criticism targeting the personal sphere of the superior or issues unrelated to the employment relationship is not.

The combined respect of these three requirements – civil form, truthful content, relevant context – places the employee’s conduct within the scope of the right to criticize protected by law.

A harsh but truthful remark, directed at a matter of genuine corporate interest, can be entirely lawful. Conversely, an apparently polite remark, but based on falsehoods or aimed at damaging the employer’s reputation, loses all legal protection.

Reviews and comments on social media: can the employer be criticized online?

It is not only the content of criticism that matters, but also the context in which it is expressed. One thing is to express dissent in direct confrontation with a superior; quite another is to publish a post on social media or leave an online review.

According to the Italian Supreme Court, the potentially unlimited dissemination of online content increases the harmful risk to the company’s image, with possible criminal implications. Judgment no. 10280/2018 clarified that a defamatory message posted on platforms such as Facebook or LinkedIn is not comparable to a comment made among colleagues, precisely because of the amplifying effect of the medium. In these cases, the requirement of “moderation” falls short, even if the content is formally expressed in a calm tone.

Of a different tenor is the recent ruling of the Italian Supreme Court no. 5331 of March 2025.
An employee had left a negative review of the company, writing simply: “Abandon all hope…” accompanied by a one-star rating. The Supreme Court, overturning the Court of Appeal’s decision, held that the expression fell within the legitimate exercise of freedom of criticism, since:

“[…] the vulgarity or infamy of the expressions used cannot be measured solely on the imagery they evoke, especially where they are quotations from literature […] every phrase must be interpreted by seeking to grasp the concrete meaning of the criticism expressed, beyond the quotation or comparison employed.”

The Court thus emphasized that a bitter or ironic tone is not sufficient to constitute an unlawful act, provided that there are no objectively defamatory or offensive expressions.

A different evaluation applies to private conversations, such as those on WhatsApp. In these cases, case law tends to recognize greater freedom of expression, unless the messages contain serious insults or are disseminated externally, thereby compromising the confidentiality of the channel and aggravating the potential damage.

In summery, criticizing the employer does not automatically equate to insubordination. It is a right, guaranteed by our legal system, but one that must be exercised with restraint. If an employee receives a disciplinary notice for having expressed dissent, it is necessary to verify whether their words respected the three fundamental standards: truth, relevance, and moderation. In that case, they may have valid grounds to defend themselves or challenge the measure.