Companies can be held liable under competition law for advertising Facebook posts by their employees even if they have no knowledge of these posts. This was decided by the Freiburg Regional Court (judgment of 04.11.2013 - 12 O 83/13).
In the specific case, an employee of a car dealership had published offers for vehicles on his private Facebook profile. He had used product photos of his employer and mentioned his business contact details in the post. The Wettbewerbszentrale became aware of the postings and warned the company directly because mandatory information on fuel consumption, CO2 emissions and engine performance was missing.
The court ruled that the warning was justified because the missing information was mandatory in accordance with the Pkw-EnVKV and AusfVO zum EinhZeitG in the motor vehicle trade with new cars and this mandatory information at least also served to regulate market behavior in the interest of the other market participants, § 4 No. 11 UWG.
The company itself should also be held liable for the infringement of competition law, although it had neither requested nor encouraged the employee to upload the postings to his private Facebook profile, nor was it even aware of this action.
According to Section 8 (2) UWG, a company is liable, regardless of fault, for competition law infringements committed by its employees. This standard is intended to prevent companies from using their dependent employees to commit competition law infringements without risk. It is sufficient for this success liability that an act is objectively attributable to the business organization, in this case the sales organization, and that there was at least a theoretical possibility of influence on the part of the company.
Finally, the objection that the post would not have been accessible to the public via the private Facebook profile, but only to a limited group of people - namely the employee's Facebook contacts - was also unsuccessful. This is because the employee had undoubtedly relinquished the area of private life in favor of (also) business-related use of his profile by providing his business contact details.
The ruling seems harsh, but the result is understandable. This is due to the fact that it is likely to be assumed that the company at least tacitly consents to sales-promoting measures by employees in their free time.
As a result, companies should formulate social media guidelines on how and to what extent employees are allowed to use social networks for business purposes. Of course, this applies not only to Facebook, but also to career networks such as XING or LinkedIn in particular.
