24. July 2020 – Social media is with us to stay. Facebook, Instagram, TikTok, Twitter – almost half of Germans have at least one social media account. Businesses mainly use their accounts as marketing tools and to get direct feedback from their customers. Because businesses are employers too, the judiciary has already taken a position about the right of works councils to share in deciding what happens on employers’ social media accounts (such as Facebook and Twitter): works councils do have the right to co-determine, if and to the extent that visitors are able to post on the page.

But which rules govern social media accounts run by works councils? Next Wednesday (29 July 2020), the Federal Labour Court (BAG) will have its first opportunity to make a statement about a works council’s Twitter account (BAG, Az. 7 ABR 9/19)*. This article discusses the case at the Federal Labour Court in the context of past rulings.

What happened?

An employer and its works council are at odds about whether and to what extent the latter may run a Twitter account. The works council used to tweet regularly, including on company matters and disputes with its employer, such as:

“#MutualAgreement is when there is no direct coercion.

#BR is therefore opposed to #DutyRosterChanges by mutual agreement.”

The works council tweeted regularly on the account until the end of its tenure in April 2017. Whether the newly elected works council kept tweeting is not documented.

The employer took the view that the works council was contravening the principles of trusting cooperation by tweeting about company matters. They said it is not part of the works council’s brief to inform the public outside the company about things that happen there. The employer did not think the works council needed Twitter in order to fulfil its brief.

The employer therefore asked Göttingen Labour Court to rule that the works council should not be entitled to speak publicly about company matters using its Twitter account, if the employer had itself not already made public statements on the same issues via the Internet. Alternatively, the employer wanted to establish that the works council was contravening the precept of trusting cooperation by tweeting.

Göttingen Labour Court upheld most of the employer’s claims. Lower Saxony State Labour Court, however, rejected all of them on appeal. It took the position that the works council could invoke freedom of speech pursuant to Art. 5 Par. 1 GG (Basic Law), and is therefore not limited to expressing its opinions in any particular place. The works council can and may decide for itself whether its public statements are appropriate.

Legal background

It is widely known that works councils are in themselves not legal entities, but they can have certain rights and obligations.

The Federal Constitutional Court and Federal Labour Court have not yet ruled on whether works councils can invoke freedom of speech pursuant to Art. 5 Par. 1 GG. Some state labour courts are taking the position that works councils can enjoy (limited) basic rights, including Lower Saxony State Labour Court in the case of the tweeting works council.

However, the Federal Labour Court has already ruled that when it comes to works councils speaking in the conventional media, addressing the public outside the company without cause is essentially not one of a works council’s roles. This only changes if the employer itself has made a matter public, in which case this has to have been done in a way which demands a response from the works council.

Outlook

Looking at past rulings by the Federal Constitutional Court and the Federal Labour Court, we can assume that as institutions, works councils will as a rule be able to invoke freedom of speech, but that this freedom of speech only extends as far as the duties of the works council pursuant to BetrVG (Works Constitution Act).

Because addressing the public without cause is not one of the duties of a works council, such behaviour will not be covered by freedom of speech. Tweeting without cause is therefore not protected under a works council’s freedom of speech.

Given the growing importance of social media for employers and works councils, it would be helpful if the Federal Labour Court would clarify this in its ruling.

* * Update: The proceedings before the BAG were terminated on 27 July 2020 due to the withdrawal of the appeal by the appellant. The date of delivery, 29 July 2020, was therefore cancelled.