Social networks have long not just played a large role in our private life, but also in our working life. In particular, platforms such as Xing and LinkedIn provide professional networking. Employers generally have no objection to their employees using social media for professional purposes during the employee-employer relationship. Numerous problems may arise, however, after the employment contract has been terminated. This may be the case because the employer has an interest in continuing to use the professional contacts accumulated by the employee. The employer may also wish, if possible, to prevent the outgoing employee from taking these contacts with them to their next employer. May an employer demand the surrender of a social media account of an outgoing employee? Or can they at least demand that the employee gives up and subsequently erases the business contacts acquired during their employment contract?
I. Right to demand the surrender of the account - to whom does the account belong?
The employer may only demand the surrender of a social media account if it is considered to have been “obtained within the scope of employment” (analogous to section 667 German Civil Code (BGB)). While it may be easy to classify accounts as purely for private use (belongs to the employee and the surrender of which cannot be demanded) or as accounts provided by the employer (belong to the employer and the surrender of which may be demanded), classifying profiles with mixed usage is problematic. It comes down to a general overview, where the following criteria are to be observed (cf. Brandenburg Local Court, judgment dated 31 January 2018 – 31 C 212/17):
- Who pays the costs of the account if fees are required?
- Whose name is the account in?
- Which email address has been used as the contact email address?
- Which address is in the profile and in any Legal Notice section?
- Is the use of the social network for business/private accounts even permissible as per the Terms of Use and the Code of Practice?
II. Right to demand the surrender of customer contacts and their subsequent erasure by the employee
Outside of social networks the employee is obligated to return (physical) customer lists provided by the employer upon the termination of the employment contract. This follows, mutatis mutandis, from section 677 German Civil Code (BGB). The right to demand the surrender related to social media contacts may only arise from section 667 BGB (mutatis mutandis) and thus requires that the contact was obtained “from employment” and not privately or merely by chance through employment. Following a ruling of the Hamburg Labour Court in 2013 (judgment dated 24 January 2013 \[Az. 29 Ga 2/13]) it would be difficult during a dispute for employers to provide evidence that the employee obtained the contacts during the course of business activities. In this judgment the Hamburg Labour Court held that a contact is deemed to have been established during the course of business activities only if it happened in connection with the work owed by the Respondent (employee) to the Applicant (employer) under the employment contract and the contact partner was acting for their respective employer when the contact was established. Furthermore the Hamburg Employment Court found that the burden of proof for the contact being established was on the employer (here the Applicant for an injunction order) and also rejected the secondary duty of the employee to state their case. Thus, the employee need not offer any explanation on their own initiative as to whether the contact saved in the account is a business contact or a private contact.
III. Contractual drafting possibilities
Due to the legal uncertainties both regarding the surrender of accounts with mixed usage as well as the surrender and erasure of customer contacts upon termination of the employment contract it is recommended that employer rights to this effect are provided for in appropriate clauses in employment contracts.
- Setting up company accounts
The first alternative, which can only be used in relation with contracts for new employees, is to agree that appropriate company accounts are set up which the employee will use to communicate with business contacts. These must be able to be surrendered without issue upon the termination of the employment contract. - Surrender and erasure of contact details
A second alternative which could be considered is setting out contractual provisions regulating dealing with customer contacts during employment and ensuring their transfer and erasure upon the termination of the employment contract. This obligates the employee to not solely save business contacts in social networks, but also in an email address book, or similar. In any case it could be agreed that the business and private contacts are to be labelled as such.
In the event of the termination of the employment contract there should then be a contractual obligation to surrender and erase the business contacts. However, the problem arises that such provision would constitute a post-contractual non-compete clause within the meaning of section 74 et seq. of the German Commercial Code (HGB) which would only be valid in the event of a simultaneous agreement on compensation for non-competition. Such a compensation obligation would then be plausible, if the erasure obligation is to be understood in such a way that the employee is not permitted to have any contact whatsoever with the customers in question. The situation would be different if the employee had to at least initially erase the contact but then would be permitted to re-establish contact in another way (for instance because they have remembered them).
Furthermore, in view of the ruling of the Hamburg Labour Court, it is recommended to add a contractual provision to the effect that the employee must demonstrate the absence of any business relation with the contacts acquired during their employment.
Tatjana Hahn
