Help, my boss is following me on Instagram!

Social networks like Instagram have become an integral part of everyday life. But employers use social networks to get information about their employees. […]

Three quarters of the German population go online every day. With its 32 million users in Germany, Facebook has a particularly large reach. But Instagram with 15 million and Xing as the leading professional network in German-speaking countries with 16 million users are also popular social networks that are filled with new data, images and information every day. In addition to interpersonal interaction, social networks can also be used as a source of information for everyone about everything and everyone.

For example, from employers who can easily obtain information about their employees and look at pictures. They may draw conclusions because of which they do not hire the applicant or which result in disputes and legal problems in an existing employment relationship that result in a warning or even termination.

The question arises: Is the employer even entitled to look at the profiles of his employees, to criticize them and to draw conclusions about professional life from private postings? Or is this a violation of workers’ rights?

Despite the entry into force of the new General Data Protection Regulation, there are still insufficient data protection regulations for employees. This state of affairs has been criticized from many quarters. In the context of the extensive innovations in data protection, the legislature failed to standardize binding rules for the crucial problems of employee data protection.

Social networks play a major role in the selection of applicants even before an employment relationship is established. The reason: Data from the job applicant is regularly used from sources on the Internet. But even if there were a legal basis that would forbid the potential employer to inquire about an applicant in advance on the Internet, implementation would not be possible in practice. If the applicant were to receive a rejection due to a posting that was displeasing to the employer, it would normally not be verifiable that the potential employer decided against him for this very reason.

Today the following applies: It does not constitute an invasion of privacy if the employer follows his employees on Instagram & Co. If the employee makes his data, pictures and postings publicly available, he must be aware that not only friends and acquaintances will be aware of this information. In principle, membership in privately used networks is associated with the private life of the employee.

A conscientious employee can, however, be expected to refrain from obviously inappropriate and particularly polarizing portrayals of himself, which are to be seen in direct connection with the employment, on the social platforms in order to protect the company’s image. Depending on the extent of the employee’s publications, the employer is free to draw appropriate conclusions under labor law.

However, it is also decisive that the employer’s authority to issue instructions does not include the personal life of the employee. Employees cannot be obliged to like or share posts with private accounts. The employer can also not require that the company be mentioned on the private profile, as this would constitute a restriction of employee rights.

The situation is different with job-oriented networks such as Xing or LinkedIn. Membership on these platforms can represent a secondary obligation of the employment relationship. However, the protection of personal data also applies here, which thus shows the limits of the employer’s right to issue instructions.

If the maintenance and appearance of the company are part of the employee’s area of ​​responsibility, he has to adhere to the specified content and the guidelines of the company, provided there are some. Another decisive question is whether the statements or behavior of the employee documented in social networks, which the employer, Supervisor or insulting, threatening or untrue colleagues can also lead to a warning or even termination without prior warning.

In principle, the employee may not exceed the limits of criminal law. This applies to statements on social networks as well as in the real world. He can also not rely on the protection of his private account if he has made his postings generally accessible. The right to freedom of expression and the right to informational self-determination also reach their limits here.

The employee cannot be asked to adjust his entire private life to the reputation of the employer. Nevertheless, he is subject to the limits of the requirement of consideration, which is exceeded in criminally relevant statements. Basically, he is bound to secrecy and loyalty. This has not only been true since the invention of social networks. Company secrets have always not been disclosed.

Every professional employment contract contains a clause on the consequences of unauthorized disclosure of trade secrets. These rules also apply to the publication of such information on social platforms. Here, the employee’s violation can be even more serious for the employer, as the statement usually has a greater reach.