Prohibited Facebook Posts

Customer comments may only be used on social media channels with the approval of the Works Council

Corporate social media presence is growing in importance. More and more companies are active online, taking advantage of online channels as another way to communicate with customers. However, caution is recommended here. One example of this is when website visitors are allowed to express their opinions about employees, especially if these visitor posts are added to a virtual bulletin board. According to a recent decision by the Federal Labor Court (BAG - Bundesarbeitsgericht) from December 13, 2016, docket no.: 1 ABR 7/15, these kinds of posts require the approval of the Works Council.

The Case:

A blood donation service maintained several Facebook pages. Facebook users could visit these pages and post on them about the blood donation service. Any Facebook user could then view and comment on these posts. Several employees were tasked with adding information to the pages and managing comments on posts. However, after negative comments were published on the pages about some individual employees, the Works Council lodged a complaint that these violated its co-determination rights. The Works Council requested that the Facebook pages be taken offline.

The Federal Labor Court agreed with the Düsseldorf Labor Court, which had found a violation of the Works Council’s co-determination rights. The court decided that the Works Council’s co-determination rights were violated under Sec. 87 para. 1 No. 6 BetrVG (Works Constitution Act). Co-determination provisions are intended to secure employees’ personal rights. Under co-determination provisions, the Works Council has a say in how technical equipment is introduced and used, if this equipment monitors employee behavior or performance. Posts published on Facebook pages fulfill this requirement of monitoring employee behavior and performance. Therefore, posts from blood donors are published statements directly concerning the work and performance of individual employees. Such posts are a way of monitoring these employees’ behavior and performance. By making it possible for blood donors to submit online comments about employees, the employer is expanding its monitoring capabilities. The employer is using donors as a supervising body. Facebook’s software electronically records this data on employee behavior and performance and makes it available to the employer for evaluation. When the employer engages with comments on Facebook posts, this represents data recording that results in co-determination rights for the Works Council. Facebook technology allows the employer to determine the times at which workers made comments on the posts. This is a way of monitoring these employees’ behavior and performance.

Recommended Action:

We can assume that Works Councils at other companies will also take advantage of their co-determination rights to help determine the concrete design of social media websites. Ongoing advances in digitization, and the evaluation options that go along with them, raise many other questions. However, the law seems to be showing a clear tendency towards protecting employees’ personal rights. This will certainly also need to be taken into account in many different areas when implementing the EU Basic Regulation on Data Privacy (EU) 2016/679.

We recommend involving the Works Council in company communication activities at a very early stage. Companies should document these meetings, thereby granting Works Councils shared responsibility in protecting employees. This is the only way to ensure that Works Councils do not interfere with expensive corporate marketing activities.

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Tags: #co-determination, #Datenschutz-Grundverordnung, #Kundenbewertung, #Leistungsüberwachung, #posts, #Works Council

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