Social media publications and workers' committees: boundaries for permissible content?
In the digital age, the German Works Constitution Act (BetrVG) plays a significant role in governing the co-determination rights of works councils in companies' use of social media. These rights extend to surveillance technologies and monitoring of employees, including social media use in the workplace.
According to Section 87 (1) No. 6 BetrVG, the works council generally has co-determination rights over the use of technical devices intended to monitor employees’ behavior or performance at the workplace. This means that before any social media monitoring measures are introduced, the works council must be involved.
The works council's right to participate is particularly important when technical means are installed that monitor individual employees over time, such as when employers monitor social media behavior linked to work or carried out on company devices or networks.
Under data protection principles, employees must be informed about any collection or surveillance of their data, which would also cover monitoring of social media use connected to work. The works council serves as an important body to safeguard employees’ rights and often must be consulted and informed about such data monitoring practices.
However, the works council generally does not have co-determination rights regarding private investigations performed covertly, unless technical equipment is used continuously and systematically to monitor employees within the company premises.
The works council's role is to ensure that social media policies or monitoring practices comply with labor law and data protection requirements, providing a level of employee representation and consent that balances employer interests in compliance and security with employee privacy.
Companies in Germany must involve the works council in decisions about monitoring or controlling social media use, especially if technical means are used to surveil employees. To avoid conflicts, it is advisable for companies to make agreements with the works council on social media use early on.
Social media guidelines should cover at least the following points: permitted platforms, separation of business and private accounts, behavior in social networks, mentioning employees, and publication of photos. The works council plays a crucial role in developing and monitoring these guidelines and safeguarding employee rights.
Lacking or unclear rules can lead to reputation damage, legal problems, or internal conflicts. Employee photos may not be published without consent, unless there is a legal basis. An exception exists if the publication is required for the performance of the employment relationship or if the company has an overriding legitimate interest, but this must be carefully weighed as personality rights always have a high priority.
Employers may only control social media use if there is a business necessity, employees have expressly consented to the monitoring, and only specific suspected cases are checked. Names or professional functions of employees may not be mentioned in social media posts without consent.
For companies, it is essential to regularly update themselves on the legal framework and work with the works council on clear guidelines to comply with labor law and data protection regulations. Employees who publicly disparage the employer or colleagues in social networks risk warnings, dismissals, damages claims, and criminal consequences.
The Federal Labor Court (BAG) has ruled that the works council must be involved in the management of a company's Facebook page, particularly concerning the comment function and visitor contributions. The works council can demand that behavior and performance controls by technical means used for monitoring employee activities are excluded to protect the privacy rights of employees. They can also demand that employees are informed about their data protection rights.
Through transparent regulations that consider both the interests of the company and those of the employees, a healthy balance can be struck that promotes operational efficiency and respects the private rights of employees. In Germany, employees may criticize their employer in social networks, provided they do not disclose business secrets or engage in defamation.
- The works council's role extends to co-determining the use of technology in the business sphere, particularly in the context of social media and finance, as they are entitled to participate in decisions about surveillance technologies and monitoring of employees.
- In the realm of entertainment, it is crucial for companies to have clear and transparent social media guidelines that respect employee privacy rights, with the works council playing a pivotal role in developing and monitoring these standards.
- As technology continues to evolve, the works council's role in safeguarding social-media-related privacy rights in the business environment remains significant, ensuring a balance between operational efficiency and employee's private rights, as per the German Works Constitution Act (BetrVG).
