Social media with comment function can be monitoring devices subject to co-determination

In its ruling of May 4, 2023 (Case No. 5 P 16.21), the Federal Administrative Court decided that social media with a comment function can be a monitoring device subject to co-determination.

1. facts

The Deutsche Rentenversicherung Bund (DRV) operates its own pages and channels on Facebook, Twitter and Instagram - in some cases also together with other pension insurance providers. These pages and channels are primarily used for public relations and staff recruitment. If Deutsche Rentenversicherung posts articles there, users can comment on them and, in doing so, also assess the behavior of individual employees in the context of written contributions. The posts and comments are stored by the operators of the respective platform, but are not evaluated separately for Deutsche Rentenversicherung.

The Administrative Court affirmed the existence of a right of co-determination of the Staff Council. The Higher Administrative Court, however, denied the existence of such a right.

In the present decision, the Federal Administrative Court ruled that the question of the existence of a right of co-determination in such constellations could only be assessed in the individual case. The matter was therefore referred back to the Higher Administrative Court.

Decision 2

The Federal Administrative Court is guided in its reasoning in particular by the following considerations. According to the relevant provision of the Federal Personnel Representation Act (BPersVG), the staff council must have a say in the installation and use of technical equipment intended to monitor the behavior or performance of employees (Section 80 (1) no. 21 BPersVG). The right of co-determination also serves to protect the personality of employees at the workplace and is intended to ensure that employees do not have to fear constant monitoring as a result of a technical device and thus come under pressure to be monitored. This protective purpose makes it necessary that already the possibility of comment creation by users of the pages and channels with possibly performance- and behavior-related information is to be regarded as an independent monitoring device. This is because there is a risk that Deutsche Rentenversicherung will also evaluate these comments. This possibility alone creates the monitoring pressure. However, it is decisive that the pages and channels are designed accordingly. There must be a sufficient probability that user comments relating to performance and behavior will also be posted. The framework in which the comment function is embedded is also decisive for this.

3. conclusion 

The Hamburg Regional Labor Court (decision dated September 13, 2018, ref.: 2 TaBV 5/18) also affirmed a right of co-determination of the works council pursuant to Section 87 (1) no. 6 BetrVG for a Twitter account of the employer due to the existing reply function. These decisions make it clear: The use of pages and channels on social media can trigger co-determination rights in individual cases. Employers who (want to) operate such pages should be aware of this when introducing them.  

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