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Germany Internationales Arbeitsrecht

Implementation of a cross-border social media strategy

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Germany Internationales Arbeitsrecht

Implementation of a cross-border social media strategy

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As social media becomes an integral part of business life, we take a look at how international employers can develop and implement a workplace policy in the complex intersection between personal and business lives.


Facebook, LinkedIn, Twitter, Instagram, Pinterest – given its growth over the past decade, social media can no longer be avoided by any company. Businesses need to define their approach to social media and their use by employees – either as a chance for additional communication and feedback, as a threat that the business will try to control or somewhere between these two extremes. Once that decision has been taken, Human Resources (HR) professionals are usually in charge of drafting, implementing and enforcing the company’s social media policy.

Free communication versus full control – the company’s general approach to social media

Social media can be anything between an acquisition tool for the business, even a contact platform for customers, to be developed and used, or a side effect of the employees’ desire for permanent communication that needs to be kept at bay. Accordingly, the approach that is the basis for drafting the social media policy can differ substantially from business to business.

The strategic approach towards social media is usually not made by HR, but by senior management, marketing or public relations (PR) as it is perceived as a communications issue. For international corporations, this decision is usually not taken on a country by country approach, but as part of the company’s philosophy, and therefore will apply on a worldwide basis.

As an example, a company offering ship cruises, are using a social media team 24/7 to deal with prospective and actual consumers’ questions and to take and confirm online bookings via Facebook. In that case, the use of a social media platform has replaced the more traditional customer contact via telephone, email or the traditional travel agent. In addition, the company has to decide to make social media a crucial part of their hiring strategy.

In a different approach, a manufacturer of electronic parts that are sold business to business, has less interest in the end consumer, but is focused on its market reputation and their intention is to restrict their employees’ use of social media at the workplace to prevent and possible damage to their reputation online.

Drafting of a social media policy

Depending on the general approach that the business is taking to social media, a clear social media policy needs to be drafted and this is usually done by the global head of HR often with the help of external legal counsel.

The content will of course, differ significantly from business to business, and as we have seen, depending upon the approach and the company culture. However, there are some basic rules that need to be included into any social media policy, which would include the following:

  • The general tone of statements on social media should be polite, friendly and positive. Content must be accurate and spelled correctly.
  • It should be clarified that the posting of illegal, pornographic or other damaging content at the workplace will not be tolerated.
  • A decision needs to be made to what extent the private use of social media is allowed at the workplace.
  • It should be stressed that the publication of confidential or sensitive company information is forbidden.
  • Privacy and copyright rules must be complied with when posting content.

For the cruise travel company with the pro-active approach to social media, the policy would include provisions on the following:

  • There will be specific rules for the team whose job is to monitor and maintain the Facebook site, reacting to customers requesting more detailed information about certain cruises, encouraging customers to post their wonderful vacation photos, etc. There are detailed instructions about what information should be posted, and the reaction time for answering posts from customers, how to react to criticism, etc.
  • Other employees are encouraged to engage in online conversation, to post private travel photos, to report on their own travel experience and an open exchange is encouraged.

For the electronics manufacturer, however, the policy will be more about staying in control. The policy includes restrictions such as:

  • The official Facebook page and Twitter page is monitored in a fairly conservative way by the PR department only and can only be accessed by them.
  • Private use of social media at the workplace is not allowed. Access to social media in the workplace for only work-related purposes needs to be unlocked by IT before it can be used.

The implementation process in the various countries

When preparing the worldwide implementation, knowledge of local law is required:

  • The first step is to have the policy reviewed by local counsel for all relevant jurisdiction. This process can be structured and organized either by each local HR department in cooperation with their usual legal advisers, or on a worldwide basis with the help of a network of law firms ideally specialized in employment law with one contact person. This process includes the review of the content, which in most cases needs little if any amendments under local law and will include information on the next steps in the implementation process.
  • In some European countries, such as Austria, France and Germany, the consent of the Works Council is required before any rules on social media can be implemented. Depending on the individual involved, this can be a fairly quick process or might require time-consuming negotiations. The potential delay needs to be taken into consideration when thinking about the timing of the worldwide implementation process.
  • The next step will usually be to make the social media policy become part of the rules that the employee needs to adhere to. It depends on the country, and on the employment contracts in place as to whether an additional written agreement with the employee will be necessary. In many countries, it will be sufficient to merely post the social media policy on the company intranet.
  • Training and education are important parts of implementing any social media policy for employers and employees. In case of e-training, this might involve data transfers which can be subject to the consent (again) of the Works Council and/or a national Data Protection Authority, such as in France or Austria.

Ensure compliance with the social media policy

There is a growing amount of international case law regarding employees that have posted damaging or negative comments about their employers in general or their managers in particular on social media, frequently on Facebook. This can happen regardless of whether the company has taken a more open or a more restrictive approach towards social media. Employees who have forgotten that they have “befriended” colleagues or in some cases even their own manager on Facebook are posting negative and insulting comments, in many cases unaware of the basic employee’s obligation to remain loyal to their employer and unaware of the damage they are causing for their employer. HR departments are usually confronted with these cases and asked how to react, and if a termination is possible based on the employees behaviour. The answer is – as in so many cases in HR: “It depends”. The issues that need to be reviewed before answering the question are fairly similar in most countries.

  • The first thing to look at is whether clear rules have been implemented in the particular country regarding the use of social media, such as in a social media policy. If, for example, one of the employees in the cruise travel company mentioned above posted a picture of his almost completely naked girlfriend aboard a ship, the first “port of call” would be see if the policy includes any rules about the nature of postings which are encouraged or those that are proscribed. The travel company has a very liberal approach but even if there is no moral concern for the employer, the policy does point out that the personal privacy of the employee’s girlfriend needs to be respected.
  • Another issue is how the breach has come to the knowledge of the employer – i.e. if the reproaches can be used in a potential law suit. The legal foundation to that question differs between the countries – German labour courts do not declare evidence inadmissible before a civil court, but will nevertheless refrain from using facts that have been obtained by secretly “befriending” and observing and employee.
  • In less severe cases, the wiser choice of action might be to issue a written warning to the employee. In many cases, that is sufficient to bring the potentially severe and career threatening consequences to the employee’s mind. In the case of the employee posting pictures of his half-naked girlfriend, there is certainly not a justified reason for a termination in any European country. But the employer might want consider to what extent the girlfriend had or not, given her consent to be posted on a public website. Depending on the outcome of that discussion, a warning might be appropriate.
  • In severe cases, no such warning is required and a dismissal for cause is possible in principal. However, the question of what constitutes a severe case, will differ not only from country to country, but will always depend on the circumstances of the individual action. In addition, depending on local law, certain rules need to be observed regarding the notification and consultation requirements with the employee in question, with an outside authority or with the Works Council or trade union.

In conclusion, it can be said that the process of implementing a cross-border social media policy is very individual. Not only does the content depend on the nature of the business, on the company’s PR strategy and corporate culture, but also the actual implementation process can differ substantially from a centralized implementation dictated by a worldwide HR function to a more local approach involving local counsel. Regardless of these differences, the implementation of a social media policy is highly recommended for most businesses and the crucial first step is to communicate to employees exactly how social media may or may not be used in a work context.

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