In Germany 80% of all internet users are registered in social networks and 70% of all internet users actively make use of social networks. This development is also increasingly having an impact on the world of employment.
Social media and recruitment
In general, German data protection legislation allows the employer to collect and use an applicant’s/employee’s personal data to the extent necessary to decide whether or not to hire the applicant and in order to carry out or terminate the employment. Personal data must generally be collected directly from the applicant/employee. However, personal data may be collected from other sources such as for example social networks if (i) the applicant/employee expressly and voluntarily consents to it, (ii) the data is publicly available (e.g. from newspapers, television, etc. or by “googling” the applicant), or (iii) the data is provided by the applicant/employee on a social network that is dedicated to business interactions (e.g. LinkedIn, Xing).
An employer is not permitted to collect data if it is provided by the applicant/employee on a private social network (e.g. Facebook, StudiVZ) or by third parties (e.g. one of the applicant’s friends publishes a party picture of the applicant).
Use of social media during the employment
During the employment, the employees` rights and obligations relating to the use of social media depend upon the purpose of usage and the question whether private or business network accounts are affected:
- Business use of business network accounts
Employers often make use of social networks as Facebook or Xing especially for marketing or recruitment. In this regard, employees have to follow the instructions given by their employers concerning e.g. communications with customers or the presentation of the company within the relevant social network.
Moreover, many employers have defined compulsory rules for the use of business network accounts in so called social media guidelines to ensure that the business message is successfully communicated whilst also limiting, as far as possible, the exposure of the business to liability for employees’ actions in business network accounts. Such social media guidelines usually include, in particular, provisions regarding the authorization to post in social media on behalf of the business, differentiation between private and business use as well as information about the employees’ confidentiality obligation and the obligation to comply with statutory laws, such as data protection, copyright and trademark laws. Noncompliance with social media guidelines can justify the employee´s dismissal. If a works council exists, social media guidelines can be subject to co-determination rights in which case the guidelines must be agreed with the works council.
- Business use of private network accounts
Employers are also entitled to regulate their employees` performance in social networks under the condition that employees utilize their private network accounts for business purposes or refer to their employers in social networks that are dedicated to business purposes such as Xing or LinkedIn. In this respect, too, the employees´ duties are often ruled in social media guidelines. Furthermore, if the job characteristics demand activities of employees in social networks as e.g. in the field of public relations or human resources, employers can instruct their employees to get registered in the necessary social networks. Apart from that, by termination of the employment relationship employees are obliged to provide any business contacts or customer relationships to their employers they have maintained via their social network accounts and that are necessary for the employers to continue the business operations.
- Private use of private network accounts
As off-duty activities are not subject to the employer´s right to control employees´ behavior, employers may not dictate or regulate their employees` private use of social networks during leisure time. Nevertheless, employees are obliged to respect their employer´s legitimate interests when using social networks for private purposes. Therefore any trade and business secrets have to be kept confidential and any defamation of the employer, supervisors or colleagues is forbidden. Employees may also not spread any false information or make any damaging assertions about their employers. Any breach of these duties – that are often subject to social media guidelines – can justify the termination of the employment relationship.
During working hours, employees are only allowed to make use of social media for private purposes as far as their employers have permitted such a practice. Furthermore, employers have the possibility to forbid any use of the company’s email and internet for private purposes. In this case employers are entitled to inspect all emails as they are business mail and to make at least spot tests whether the employees respect the usage rules for the internet. Again, misuse by the employees in this context can justify the dismissal of the employment relationship.
In conclusion, it is recommended for the mutual benefit of employers and employees to establish social media guidelines covering the use of social media by employees.