Social Media Poses Several Hurdles For Enterprises
Social media offer enterprises many new opportunities of
communicating with stakeholders, especially with customers in the
B2C business. However, in the euphoria it is all too common to
overlook the new legal risks that are also associated therewith.
Lacking specific "social media" laws, enterprises wishing
to communicate in a legally admissible manner must tackle the issue
by addressing the legal situation for communicating via
"traditional" media. There are numerous hurdles: for
example in employment law, when a company monitors its own
employees or checks out potential employees, in data protection
law, or with respect to the content of corporate
Corporate communications ultimately always have one goal:
advertising – for employees, customers, suppliers,
investors, public opinion. Advertising, be it in print form, by
television, radio or in the form of word-of-mouth advertising, is
governed by certain regulations, inter alia the provisions of the
German Act Against Unfair Competition [Gesetz gegen unlauteren
Wettbewerb, UWG]. According to the Act, for example,
surreptitious advertising is prohibited. This includes bought or,
to put it more mildly: sponsored, blog articles. Around the
beginning of the year the Regional Court [Landgericht, LG]
of Hamburg confirmed this to a legal protection insurance company,
whose IP-address could be allocated to a conspicuously positive
comment in a blog about this type of insurance.
But what about cases where a comment has not been paid for at
all, but where an employee, perhaps from a computer at work, just
wanted to comment on his personal experience with his employer?
After all, an increasing number of enterprises are allowing (and
encouraging) their employees to use social media, also during work
hours. A prohibition outside of working hours is not possible in
Enterprises are also liable for violations of the law by its
employees and agents: above all, they face the threat of warnings,
declarations of forbearance subject to a penalty or interim
injunctions, lawyers' fees and court costs. Enterprises are
increasingly issuing their employees guidelines for all –
private or work-related – use of social media. Their
contents are mostly confined to tried and tested principles: stay
friendly, professional, honest, stick to verifiable facts, offend
no-one, obtain rights to pictures and texts, put yourself in the
position of the person concerned, in case of doubt – hold
It is more important that enterprises are aware of the key
features concerning the structure and mentality of Web 2.0, for
example: I am being talked about even if I do not want this. The
reaction of the network community is a typical new risk of social
media: If you stir up an advertising wind then you may well end up
in a "shitstorm" as was recently the case with the
ING-DiBa, whose meat-loving advertising icon Dirk Notwitzki
antagonised vegans on the internet. Although the bank reacted
calmly, general rules should also be established and communicated
to the employees for cases such as this.
Several legal tools are fundamentally available to enterprises
for preventing statements on the internet and for holding the
responsible parties to account, above all warning letters and
interim injunctions. However, the operators of some internet sites
are too difficult to reach in order to enforce these rights. And
even if this is possible, the network community's reaction can
be devastating – the accusation of censorship is quick to
arise; legal proceedings are often taken as even better grounds for
Hence, the extent to which legal proceedings make sense will
always have to be appraised by cautious enterprises in an
individual case, also with respect to their communicative effect.
Coordination between legal and communications departments is
therefore more important than ever. Social media have literally
accelerated this necessity even further – for time is
often the critical success factor on the internet.
Georg Lecheler is a lawyer and junior partner of the law
firm of Oppenhoff & Partner. He advises enterprises on matters
of intellectual property law, unfair competition law and copyright
law. He is a member of the law firm's social media practice
group, which advises on all pertaining legal aspects. Inter alia,
its lawyers assist in the development of strategies for handling
social media and in the drafting and implementation of social media
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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