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Social Media Policies: a "must have" or "nice to have"? A German perspective

February 2013

In the past few years, many companies in Germany have implemented (varying) internal policies or guidelines with regards to the use of social media. On the one hand, issues in relation to Data Protection, Copyright and Employment law requirements seemed to further the creation of such documents. On the other hand, many employers saw a necessity to offer some sort of guidance for their employees' activities when engaging in blogs, wikis or social networks as "brand ambassadors" outside of regular working hours. Whether or not these regulations have some or any effect, however, is a matter of their content and implementation.

guidelinesUnder German law a distinction can be made between guidelines which aim at giving general advice to employees when using their private social media accounts by work-related means in their free time (sometimes called Social Media Guidelines) and more formal policies which are based on a company's social media strategy. These more formal policies regulate, for example, how a member of the marketing team should handle the company-owned social media account (often referred to as a company's Social Media Policy). They can complement a company's IT guideline and they should be seen as a must for most companies for the following reasons.

'Social Media Policies' are significant tools for dealing with a number of potential issues. First of all, they serve as a benchmark for compliance in cases where an established social media strategy exists. For this purpose, such policies may be complemented by more specific 'playbooks' for each of the social media channels in question. In addition, these policies may include the obligation to use social media accounts in a certain manner to ensure some sort of quality control. Further, they could or should cover the right to monitor and to access corporate social media accounts in an employee's absence. They can also stipulate how data, such as contacts or marketing details, should be handled and archived. Such provisions are necessary because from a German law perspective, the intellectual property rights related to materials created by an employee for a social media account might remain with the employee. Furthermore, Data Protection and Unfair Competition aspects should be dealt with in such policies to avoid relying on employment contracts which might be outdated.

From an Employment law perspective, the introduction of a 'Social Media Policy' is generally part of the employer's right to manage. However, if a Works Council exists, the introduction of a comprehensive policy may touch the Works Council's right to co-determination. This could be the case if the policy would not only define the employee's obligations how to use the company-owned social media account but also cover obligations regarding the right to use of private social media accounts within working time. As such boundaries are not always easily defined, it is recommendable to consult with the Works Council prior to the introduction of this type of policy. This has the advantage that such an approach can be regarded as a confidence-building measure towards the Works Council and, furthermore, would lead to direct-enforceable law if the agreement on the policy would be implemented in a Works Agreement.

using social networksIn contrast, 'Social Media Guidelines' may only give advice on how to use such social media accounts and may inform the employee on work-related restrictions which apply even in the free time of the employee, because the use of these accounts within free time is not subject to the employer's right to manage. Thus, the employer can "remind" an employee to refrain from statements that may interfere with the employer's interests. By doing so, the employer has at least the chance that an employee might reconsider his/her actions before violating such obligations. Therefore, these types of guidelines are less of a must-have.

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Social media policies - a German perspective
Thanos Rammos

      

Dennis Lüers



Thanos and Dennis discuss the benefits of a social media policies from a German perspective.

"Under German law a distinction can be made between guidelines which aim at giving general advice to employees when using their private social media accounts by work-related means in their free time and more formal policies which are based on a company's social media strategy."