Social Media / Labour Law

November 03, 2023

Social media is an important part of corporate marketing today. The internet presence can determine how customers perceive the company and whether the product or service sells. In addition, employees also use the internet and maintain channels on social media. The employer company is affected by this in different ways. On the one hand, internally, when it comes to private internet use during working hours, and on the other hand, externally, when employees publicly express themselves on social media regarding the company. The problems that can arise and the consequences that the employer can draw will be shown in the following.

Statements by the employee in social media

If the employee speaks out about the company on social media, this can be both an opportunity and a problem. In the best case, the employer benefits from a positive portrayal. However, negative comments can damage the company's reputation. The employer can take action against this.

The starting point is the employee's duty of loyalty. The employer's interests must be taken into account and his interests worthy of protection must be preserved. In the event of a violation, a warning is first required, unless there is sufficient reason to believe that the employee will not change his or her behaviour and has a permanent and irremediable lack of aptitude.

The Higher Labour Court (Landesarbeitsgericht, LAG) of Hamm declared the termination without notice of a trainee because of a statement on Facebook insulting the employer to be effective pursuant to section 626 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) (Case No. 3 Sa 644/12). In principle, it is permissible to publicly criticise the employer and company conditions, even if it is exaggerated or polemical. However, grossly unobjective attacks and deliberately untruthful allegations of fact would justify immediate dismissal if they caused considerable damage to the honour of the person concerned. Based on these principles, the Duisburg Labour Court (ArbG) even affirmed a dismissal without notice of an employee who insulted his colleagues on Facebook (ref. 5 Ca 949/12). Such a post could not be equated with a statement among colleagues, as it could be read again and again.

It is noteworthy that the Labour Court of Dessau-Roßlau assumed that the employee had a duty to prevent the hurtful behaviour of other persons close to him (Case No. 1 Ca 148/11). Under certain circumstances, the employee's public approval of such statements also constituted a breach of duty. In the case under review, however, dismissal without notice was rejected because liking an insulting post by the plaintiff employee's husband did not constitute a breach of duty. There was no danger of repetition, as the post was deleted immediately and no damage to reputation had occurred.

The Saxony Regional Labour Court also took a hard line in the case of a xenophobic Facebook publication (Case No. 1 Sa 515/17). The employee's behaviour had negative effects on the company, which is why termination without notice was appropriate. The reference to the company existed because the employee had stated his employer and job title on his profile and had published a photo in official clothing.

Internet use during working hours

Private use of the internet by an employee during working hours can constitute a breach of the duty to work under various aspects. According to the Federal Labour Court (Bundesarbeitsgericht, BAG), such a violation exists through

use contrary to an express prohibition by the employer,

failure to perform work owed under the employment contract while surfing the internet for private purposes,

downloading substantial amounts of data from the internet to company data systems,

the additional costs arising from private use,

damage to the employer's reputation because criminal or pornographic material is downloaded (Case No. 2 AZR 581/04).

Even if there are no explicit regulations on private internet use, there may be a violation of the duty to work if the use is to such an extent that the employee cannot assume that it is covered by the employer's consent. For example, the Schleswig-Holstein Higher Labour Court (LAG Schleswig-Holstein) assumed termination without notice in the case of an employee who installed an internet portal on the company computer, through which he downloaded files on such a massive scale that it consumed 90% of the line capacity (Case No. 1 Sa 421/13). The Higher Labour Court (LAG) of Cologne considered termination without notice to be justified even if 860 URLs were called up in one day over several days and months despite a corresponding ban (Case No. 4 Sa 329/19). Internet use for private purposes should not impair the performance of the main service obligation.

Social media guidelines

The preceding remarks have shown how problematic the use of social media can be for employees. Uncertainty of action and legal disputes can be prevented through instructions for action, so-called social media guidelines. These can be implemented directly in the employment contract or can be set up separately. Ideally, they should specify how employees should behave on the internet. Moreover, the company can prove that the employee has been comprehensively instructed and informed. Guidelines specify the existing duties under labour law, which are also regulated in the employment contract. The content depends on the circumstances and needs of the company. It can be specified to what extent and to what extent the use of the internet for private purposes is permissible. Likewise, reference can be made to proper data protection, the importance of confidentiality declarations or the handling of works protected by copyright. Consequences of violating the obligations can be pointed out.

We will be happy to advise you on all legal questions regarding social media use in the context of an employment relationship and draw up guidelines for the use of digital offerings on the internet tailored to the needs of your company. Please contact us.