Social media guidelines
Introduction of guidelines
Every second, eight new members sign up to Facebook. Worldwide, the network has more than 650 million users, with 18 million in Germany alone. The influence of social media networking websites such as Facebook, Twitter and MySpace has long been discernable in the working environment. For 75% of German undertakings, opinion-forming with regard to social networks is considered to be of key importance, while 30% of undertakings conduct online research within the context of applicant selection.
The rise of social networking has brought with it new issues and challenges relating to employment law. The dual role of social media as, on the one hand, a private means of communication and, on the other, an effective instrument for entrepreneurial activity has created a need for competent advice. The potential benefits to be derived from social media in relation to opinion making and marketing go hand in hand with potential detriments relating to the reputation of the undertaking. In this context, the following questions arise:
- What manner of use of social media websites by employers and employees is admissible?
- What penalties can be imposed in the event of violations?
- What rights do employees have regarding their data?
- How is it possible to regulate the use of social media in a meaningful way?
As the saying goes, "The Net does not forget." This makes it all the more important for an undertaking to mitigate the risk of employees engaging in abusive or ingenuous conduct. Thus, conduct requirements must be made clear to employees from the outset of the employment relationship. An appropriate means of meeting this challenge is through the introduction of social media guidelines, by means of which concrete conduct obligations are imposed on employees. Violations of these obligations can be penalised through the issuance of an official warning and, in certain circumstances, even notice of dismissal. At the same time, the content of the social media guidelines is conditional on the regulation requirements of the relevant undertaking. The guidlines may:
- ban the posting of information which may be detrimental to the undertaking;
- prohibit the making of competition-relevant arrangements with competitors (ie, so-called 'rigging');
- prohibit the exchange of business and trade secrets, and information of a general nature intended to create a general problem awareness;
- impose restrictions on the tone of employees' communications with each other;
- stipulate rules on copyright and data protection; and
- increase employee awareness with regard to internet use.
The employer's power to regulate online encounters is limted by the employees' basic rights (eg, the general right of personality and the right to free expression).
There are several options for employers regarding the manner in which social media guidelines can be introduced as instructions for action that are binding on employees.
The employer may regulate professional use of social media on the basis of its right to issue instructions. However, the right to issue instructions does not extend to private activities and reaches its limits in higher-ranking statutes (eg, collective bargaining agreements or works agreements), and in the principle of reasonable discretion.
Furthermore, social media guidelines can be made obligatory for employees through employment contracts or by referring to a work rule. In this connection, it must be taken into consideration that, in future, the agreed guidelines may be derogated from only by way of common consent-modifying agreements or through dismissal with the option of altered conditions of employment.
Finally, social media guidelines can be implemented with the involvement of an existing works council by reaching a works agreement. Such agreements will then be deemed normative and mandatory under Sections 75 and 77 of the Works Constitution Act and need not be implemented separately.
In the case of each of the different implementation options, all of the relevant particularities must be observed. The cost of introducing the guidelines must also be considered, along with the possibility that changes to the guidelines may become necessary at a later date. In particular, employers should bear in mind that certain individual regulations may be subject to co-determination by the relevant works council.
Undertakings which permit private use of the Internet or in which social media websites are used for work purposes would be well advised to consider introducing social media guidelines as a matter of urgency. Where such guidelines are well structured and formulated, they constitute an appropriate means of ensuring that undertakings enjoy the benefits of social media, while minimising the potential drawbacks and risks. Employers should carefully consider the best way to introduce the guidelines to ensure that they are binding on employees.
For further information on this topic please contact Andrea Bonanni, Bjoern Gaul, Daniel Ludwig or Bernd Roock at CMS Hasche Sigle by telephone (+49 221 7716 128), fax (+49 221 7716 110) or email ([email protected] [email protected], [email protected] and [email protected]).