Dr. Martina Jentsch Friederike Kilian Björn Gaul Bernd Roock December 19 2012 Are social media accounts private or professional? CMS Germany | Employment & Immigration - Germany Dr. Martina Jentsch, Friederike Kilian, Björn Gaul, Bernd Roock Employment & Immigration Introduction Admissibility of professional accounts Legal classification Opportunities for use by companies Comment IntroductionIn the age of social networking, social media sites have become a popular marketing platform, not only for individuals who wish to promote their private and professional lives, but also for companies that are discovering new ways of advertising and attracting new clients. Meanwhile, a new development has taken place: an increasing number of employees have started using their private accounts for professional purposes. This raises the following questions:What happens to an employee's social media account after he or she is no longer employed by the company?In what circumstances can social media be used for business reasons?This update provides an overview of the terms and conditions of the most important social media platforms (eg, Facebook, Twitter, XING, LinkedIn and Google+) and the various legal classifications.Admissibility of professional accountsIn order to separate the professional and private uses of social media accounts, employees should create individual accounts solely for professional use. However, this is admissible in a limited way only.The German version of Twitter's terms and conditions provided on its homepage includes no restrictions referring to the professional use of an account. Users can register multiple accounts. This offers the possibility to register a second account which can be used for professional purposes.According to Point 4 of Facebook's existing terms and conditions of use, a Facebook user must register with his or her real name and valid data. Each user can create only one personal account. However, the help section includes a point which states that a Facebook user can register only one Facebook account for each email address, indicating that registration with multiple email addresses is possible. Another point clearly states that setting up several accounts violates the terms and conditions of use. According to this statement it seems reasonable to assume that it is not permitted to have several Facebook accounts. It is therefore clear that a separate professional account, in addition to the private account, is not permitted.Referring to Clause 2.6 of the latest XING terms and conditions, each user may register once only and create just one user profile. These terms are equivalent to Facebook's regulations.According to Clause 2(3)(4) of the LinkedIn user agreement, the respective user must not register more than one LinkedIn user account. Thus, if a user has a private account, no further account for professional use can be set up.With regard to Google+, there is no clear-cut regulation. However, the general Google user terms and conditions (in "Your Google account") state that a Google account "can also be set up and assigned to you by an administrator as, eg, your employer or an educational institution". This shows the potential for setting up individual professional accounts. However, there is no additional information with regard to operating several accounts by a single person and thus it is doubtful whether two different accounts can be set up.Legal classificationDue to the fact that most social networks do not allow for setting up separate professional accounts, frequently employees use their private accounts to maintain contacts and for other employment purposes. Therefore, it is necessary to consider the consequences in case of termination of the employment relationship.Even though a new line of precedent in cases regarding the ownership of these accounts is arising in the United States, the German courts have not yet had the opportunity to provide an opinion on this issue. At present, only legal literature has established several criteria to assess whether an account can be classified as equipment owned by the employer. The following criteria are indications for classification as a professional account:the account description refers to the company (eg, by using the company's name as a part of the account's identification);there is clear indication and branding for third parties that the account belongs to the company;the account's creation is based on delegation and authorised by the employer;the company financed the account (eg, by using employees for maintenance and administration); andregistration was completed by the company.If, according to these criteria, the account is merely a professional account, it can be considered a means of production. In case of termination of employment, the employee must return such company-related account to the employer. The return will take place by providing access data and passwords. However, prior to transfer the employer must enable the employee to delete any personal data resulting from correspondence with customers.An account for private and company-related purposes is considered to be a mixed account. In such a case, the employer has no right to demand the release of the access data. However, the employee is obliged to transfer, in some form, any company-related data stored in his or her account to the employer.Opportunities for use by companiesMost social networks prohibit the establishment of exclusively professional accounts; nevertheless, the question arises as to how companies can make use of social networks. In this case, fanpages or company-related pages offered by Facebook, as well as XING, LinkedIn and Google+, are a possible solution. They can be used by employees to report on the latest developments, as well as to respond directly to complaints or contributions from users. The advantage of using such sites is that there is no link to employees' private accounts. Further, staff operate in their capacity as employees and are thus subject to the employer's right to give instructions.CommentDue to potential conflict resulting from a mixture of private and professional purposes within a single account, and against the background that a private account that is also used for professional purposes must not be returned by the employee in case of termination of employment, such a combination should be avoided. Additionally, since most social networks do not permit individual professional accounts, companies should make use of company-related sites for social media activities.For further information on this topic please contact Friederike Best, Bjoern Gaul, Martina Jentsch or Bernd Roock at CMS Hasche Sigle by telephone (+49 30 20360 1406), fax (+49 30 20360 2000) or email ([email protected], [email protected], [email protected] or [email protected]).