Social media accounts as a company: who keeps followers when employees change?

Social media have become valuable assets for modern companies. Followers, profiles and reach can determine customer relationships, employer image and marketing success. But who owns these digital assets when an employee leaves the company? In practice, the question increasingly arises: “Who owns the LinkedIn account after termination?” Can the employee simply “take” their contacts and followers with them, or does the company have a right to them? In the following, the employment law, corporate law and civil law aspects of this topic are examined – legally sound and with a view to practicable solutions for the self-employed, start-ups and growing companies.

Social media profiles in the employment relationship – classification and significance

Social media accounts in companies are now an integral part of marketing and personnel branding. Employees often act as brand ambassadors – be it on LinkedIn for employer branding or on Instagram for product advertising. This blurs the boundaries between private profiles and company accounts. From the company’s point of view, an employee’s reach on social media is an economic asset – a company asset that you don’t want to lose when the employee leaves. From the employee’s perspective, on the other hand, profiles and followers are part of their personal professional identity. This mixed situation harbors potential for conflict, which is not clearly clarified in legal terms and therefore requires clear agreements.

Legal question: Who owns accounts, followers and contacts when I leave?

Principle: Without a special agreement, personal social media accounts belong to the employee. Whether and to what extent the employer has claims to the account or the contacts on it essentially depends on the use and assignment of the account. Case law generally distinguishes between three groups of cases:

• (1) Genuine company accounts: These are set up and managed by the company and used exclusively for business purposes. They typically run under the company name or a brand name. In this case, ownership clearly lies with the company. If an employee only has access data as part of their work duties, they must hand it over at the end of the employment relationship. The employer can demand that the account be continued – but not under the employee’s name if the employee was personally named.
• (2) Purely private profiles: Accounts that were created privately by the employee (possibly even before employment), run under their own e-mail address and name and contain predominantly private content. Such profiles belong to the employee. The employer has no right of surrender here and may not simply demand that the employee post company content there or hand over the profile after leaving the company. The private followers “belong” to the employee – they have deliberately given their attention to the person and not to the company.
• (3) Mixed-use profiles: In practice, hybrid profiles that are personal to the employee but were used intensively for company purposes during employment are common. For example, an employee’s LinkedIn profile that was heavily used for employer content, or an Instagram account that the employee uses partly privately and partly for company marketing. These cases are the most difficult to classify legally. An overall view of all the circumstances is required here.

Who the account can be assigned to in individual cases is determined by circumstantial evidence. The courts use the following criteria, among others (see AG Brandenburg, judgment of 31.01.2018 – 31 C 212/17):

• Time and reason for creation: Was the account explicitly created on behalf of the company during the employment relationship, or did it already exist as a private profile beforehand?
• Registration data: Under whose name does the account run and to which e-mail address is it linked? (Private address of the employee vs. company address)
• Profile design: Is it recognizable in the profile that it serves the company? (e.g. use of the company name, company logo, indication of the company in the bio/imprint, link to the company website)
• Content usage: Is it mainly business content, employer campaigns, product advertising, etc. that is posted or is it mainly personal posts? Are followers mainly customers/industry network or private environment?
• Access rights: Does only the employee have access (sole admin rights, personal password) or do colleagues/the employer also have access to the account? Is the account integrated into internal company tools?
• Costs and resources: Does the employer bear the costs for the account (e.g. in the case of paid premium accounts or sponsored posts)? Does the company provide human or financial resources to set up the account (e.g. content creation, marketing budget)?
• Terms of use of the platform: Do the terms and conditions of the social network even allow the transfer of accounts or company use of personal accounts? (Many platforms such as LinkedIn stipulate that personal profiles are personal and non-transferable).

In the event of a dispute, such criteria are used to determine whether a profile is more likely to be classified as business or private. A profile that is predominantly used for business purposes and co-defined by the employer could be considered to have been obtained in the course of employment. In this case, a claim for restitution could be considered by analogy with Section 667 BGB – the employee would have to hand over to the employer everything they have gained from the activity (here: Access to the account or at least the business contact information). If, on the other hand, the profile is recognizably personal in nature, the private features predominate and the employee retains control.

The courts emphasize that this distinction is a question of the individual case. In case of doubt, the allocation tends to be in favor of the employee if there is no clear company connection. For example, the Brandenburg District Court ruled that an employer is not entitled to a former employee’s Facebook page if it cannot be clearly assigned to the company (Brandenburg District Court, judgment of 31.01.2018 – 31 C 212/17). In the case in question, the page ran under the employee’s name and was registered with his private email; it also contained private posts. Although there was a link to the company page and the employer’s legal notice in the info section, this alone – according to the court – did not give the company a clear ownership position. The presence of a company imprint was only one of several indications, but not decisive as long as the account had a mixed private character overall. The employee was allowed to keep the Facebook page.

Conversely, if the employee had created the profile with company data on the instructions of the company, e.g. using a company address or exclusively for business posts, the evidence would be more in favor of a company account. The employer could then demand that the account access data be handed over. However – and this is important – the employer can never demand that an account be maintained under the employee’s name. This means that even if the employer is granted access, they cannot simply continue to operate the profile as if they were the person. In practice, an account that has been taken over would then either have to be shut down or converted into an official company account. This is due to the fact that personal profiles in social networks are personal and continuing to operate them under a false identity would violate the terms of use and personal rights.

Legal basis: Duties under employment law vs. personal rights

The use of social media at work affects various areas of law. In employment law, the following generally applies: employees owe their employer their work performance in accordance with Section 611a of the German Civil Code (BGB) and have fiduciary duties towards the employer. This includes not damaging company interests and protecting business secrets (Section 17 UWG). At the same time, the employee has personal rights and a right to a private sphere – even in the digital space.

During the employment relationship, social media use is subject to certain limits: For example, the employee may not post confidential company information without authorization and must behave loyally. A classic example is a case before the Düsseldorf Labor Court in which a trainee who had called in sick posted a vacation greeting on Facebook (“Off to the doctor and then pack your bags!”). The ArbG Düsseldorf deemed this to be a significant breach of the duty of loyalty under the employment contract – it justified termination without notice (ArbG Düsseldorf, judgment of 25.08.2011 – 7 Ca 2591/11). This case shows that statements and behavior on social media can certainly have consequences under employment law.

Applied to the account issue, the duty of loyalty means that employees may not misuse company social media channels for unauthorized purposes as long as the employment relationship exists. For example, an employee who manages an account provided by the company must manage it in the interests of the employer and may not secretly divert follower data to themselves. Once the employment relationship has ended, however, the general duty of loyalty ends – only post-contractual obligations such as confidentiality or agreed non-competition clauses then apply.

Under civil law, the question arises as to whether a social media account or follower list can be considered “property” or a protected legal asset of the company. Classical property (property law) is ruled out due to the lack of a physical object. However, protection as other rights within the meaning of Section 823 (1) BGB is conceivable: for example, an established company profile could be regarded as a manifestation of the company’s personality rights or as protected legal property. So far, however, case law has tended to resolve social media accounts primarily under contract law and competition law instead of classifying them as an absolute right in their own right.

If an employee “takes” business contacts or followers with them when they leave, Section 17 UWG (betrayal of business and trade secrets) and, since 2019, the Trade Secrets Act are often examined. A list of customer contacts exported by an employee can be a trade secret. However, this is doubtful in the case of publicly viewable social media contacts, as they are not secret. Contacts on LinkedIn or XING are usually publicly part of the network – it is almost impossible to prevent them from being “taken along” because the network is also accessible to the contact themselves. Data such as private notes about customers that are not public, on the other hand, enjoy confidentiality protection. If the employee steals internal CRM data or uses confidential contact information from the account for their new employer, for example, this may constitute a violation of the Unfair Competition Act. In this case, however, the former employer must prove the confidential nature and unauthorized use.

§ Section 667 BGB analogously plays a central role – as mentioned above: this standard obliges agents to hand over everything they have obtained from the business relationship. In the employment relationship, Section 667 BGB is not applied directly, but by analogy, in order to derive claims for restitution. So if it can be argued that the social media account or at least the business contacts stored on it were “obtained in the course of employment”, then the employee must hand them over. This is exactly what is regularly disputed. The burden of proof lies with the employer: the employer must demonstrate that and which contacts were made via the account as a result of the employment contract and are attributable to the employer’s business.

The hurdles for this are high. A well-known example is the Hamburg Labor Court, which had to rule on an employee’s XING contacts in 2013. The employer demanded the deletion or return of these contacts after termination. However, the ArbG Hamburg (judgment of 24.01.2013 – Ref. 29 Ga 2/13) ruled that there was no claim for the return of the contacts because the employer could not prove that the contacts had arisen “precisely in the context of the activity owed under the employment contract”. The judges clarified: A mere business opportunity or the fact that the person was contacted during employment is not enough. It would have to be shown that the contact itself was part of the work obligation and was made on behalf of the employer – which is difficult to differentiate in social networks. In addition, the court refused to make it easier for the employer to provide evidence: the employee does not have to demonstrate on their own initiative whether a contact is private or business-related; the full burden of proof lies with the employer. This precedent illustrates why companies often come away empty-handed in court when they subsequently want to reclaim “their” followers or contacts.

Data protection aspects must also be taken into account: Social media contacts are personal data. If an employer were to demand that an employee provide them with a list of their LinkedIn contacts, for example, they would quickly find themselves in the area of the GDPR. The contacts/followers concerned did not provide their data directly to the company – they followed the person. Transferring this data without consent could be contrary to data protection law. In addition, employers often do not even know the access data for purely private accounts, which makes it practically impossible to hand them over.

In terms of corporate law, social media accounts raise the question of how these intangible assets can be kept within the corporate sphere, especially for start-ups and companies. A social media account can be part of the company’s goodwill (keyword: goodwill, reach). If, for example, a company is sold, the buyer would like to take over the social media presence. However, if these are on personal employee accounts, the company is not entitled to them in case of doubt. From a corporate law perspective, it is therefore advisable to treat important social media channels as company assets – for example, by creating official accounts that are registered to the company. Managing directors and employees as directors also have a duty to protect company assets. It could be argued that a managing director who allows the company’s presence to run solely via his private profile is in breach of his duty of care under Section 43 GmbHG (or Section 93 AktG for board members) because he is putting the company in a dependent position. The question of who “owns” the followers can also arise among shareholders, especially if a founder with a large personal brand leaves the company. Clear arrangements in the articles of association or shareholders’ agreements should take such cases into account.

Last but not least, the issue can also have consequences under competition law. If an employee switches to the competition and uses their social media contacts to poach customers, they are bordering on unfair poaching. Without a contractual non-competition clause, a moderate change of customer is legal – however, targeted poaching using knowledge acquired in the old job can fall under Section 823 (1) BGB (infringement of the right to established and exercised commercial operations) or Section 17 UWG. There is an overlap here with the issue of followers: The old company can hardly prevent the mere fact that an employee continues to “take along” their followers in their new job. What it can prevent is the employee using protected trade secrets or unfair means (such as misleading statements about who the contact person is). In practice, such cases are difficult to prove – which is another reason why the trend is towards contractual regulations and policies that provide clarity in advance.

Company account, mixed profile or private account? – Differentiation in practice

Here is the corrected section with adjusted formatting and updated legal bases:

Company account, mixed profile or private account? – Differentiation in practice

Since the legal consequences depend heavily on the account classification, a clear distinction between company account and personal profile is essential in everyday life. Some typical constellations should be clearly separated here:

Company account: A profile that officially appears in the name of the company. Examples include the company Facebook page, a Twitter account with a company logo, a LinkedIn company profile or a corporate Instagram account. Such accounts are typically managed by the marketing department or a social media team, often with changing administrators. Legally, such an account undoubtedly belongs to the company. There are rarely disputes when employees change, as the access data generally remains internal and the account is seamlessly continued. Important: It should always be ensured that several authorized persons have access to the accounts or that the access data is at least documented centrally. This prevents a departing individual administrator from “taking” or blocking the account. Ideally, registration should only take place via the company’s own e-mail addresses, never via the personal addresses of individual employees.

Private profile: An account that the employee maintains independently and privately – be it under a clear name without reference to the employer or with professional details, but still used independently. Such profiles are controlled exclusively by the employee themselves. Employers only have very limited influence over their employees’ private social media activity. They are not allowed to prohibit employees from having profiles, nor are they allowed to prescribe content without further ado, as long as no significant business interests are violated. After leaving the company, the profile remains with the employee, including all followers. The company has no claims to it. However, the post-contractual duty of confidentiality pursuant to Section 823 (2) BGB in conjunction with Section 17 UWG and the Business Code of Conduct continues to apply. § Section 17 UWG and the Trade Secrets Act (GeschGehG). Disparaging statements (in particular abusive criticism or defamation) also remain inadmissible.

Mixed-use profile: This category is a legal gray area. A typical example of this is LinkedIn profiles of employees that are personally registered in the name of the person in question, but were systematically used for company purposes such as customer acquisition, recruiting or employer branding during their employment. Companies often actively support these profiles (e.g. through content templates, social media training or financial incentives) without formally labeling or adopting the account as a company account. Also affected are Instagram profiles of employees who act as influencers but post company-specific content under their own name. Such profiles typically show a mixture of private and business posts; the followers come from personal, business and industry-specific circles.

There are currently no explicit legal provisions for these mixed cases. The allocation of an account is therefore based on the above-mentioned indications and is decided by the courts on a case-by-case basis. Start-ups and small companies in particular, which rely heavily on personal branding, run the risk of such hybrid profiles being created. On the one hand, they benefit from the reach of the employee profiles, but on the other hand they risk losing this reach if employees change. In such cases, courts tend to emphasize the personal nature of the account unless a clear contractual agreement has been made. Social media accounts are generally personal (especially LinkedIn, XING, Facebook and Instagram – with the exception of certain platforms such as Twitter, where group or pseudonym accounts are common).

In practice, this means that followers primarily follow the person. Even if this person mainly posts content in connection with the company, the followers are primarily tied to the individual profile. The personal relationship argument therefore also suggests that a simple transfer of the profile to the company after termination is not lawful. This argument also has implications in terms of data protection and competition law, as followers may not suddenly be managed by another operator whom they did not originally want to follow.

This view is supported by court decisions. For example, the ArbG Hamburg ruled in a prominent case that an employee’s XING contacts on their personal profile do not automatically have to be handed over to the employer. Similar restraint can be expected in future decisions on LinkedIn contacts.

Another important legal aspect concerns the imprint obligation and labeling requirements. Since December 1, 2021, the Telemedia Act (TMG) no longer applies, but the new Telecommunications Telemedia Data Protection Act (TTDSG) in conjunction with Section 18 (1) of the Interstate Media Treaty (MStV). According to this, an imprint obligation still exists for telemedia operated on a business basis. Many employees add their employer’s legal notice as a precautionary measure when business-related posts are published. However, according to the prevailing opinion, this alone does not automatically lead to the account becoming an official company account. The imprint obligation primarily serves to legally safeguard business communication. However, a clearly highlighted company imprint could be an indication of a business assignment, as the Brandenburg District Court (case no. 31 C 212/17) has found – although this alone is not sufficient to clearly assign the profile.

In short, without clear contractual agreements, a mixed profile remains difficult to classify in legal terms, with case law tending to attribute it to the employee’s personal property in cases of doubt. Companies should therefore prevent such situations from arising in the first place and make appropriate contractual or internal arrangements.

Special case 1: LinkedIn accounts and employer branding

LinkedIn (and formerly XING in Germany) are professional networks where professional contacts are made. Companies want to have a strong presence here – both via official company pages and via their employees’ profiles. Employees with customer contact or those in PR/HR functions are particularly encouraged to act as figureheads for the company. Campaigns such as “Employees share company posts” or personal networking on behalf of the company are common.

But what happens to such a LinkedIn profile after the employee changes? According to LinkedIn policy, a personal profile always belongs to the person and is not transferable. The company therefore technically cannot simply take over the profile. If an employee with many industry contacts resigns, they “take their LinkedIn contacts with them” – they remain in their account. The company may lose a valuable network treasure. Legally, there is hardly any way to prevent this as long as it was a personal profile.

Please note: LinkedIn contacts are reciprocal, i.e. the company (via other employees or a CRM database) ideally also knows these people. It is therefore advisable not to leave business contacts exclusively on LinkedIn, but to enter them in parallel in the company’s own systems. Then the employer at least has access to the contact details, even if the social media link is lost via the employee. (This practice was recommended in a publication by Tatjana Hahn, for example, as a sensible way to defuse conflicts in the event of dismissal).

In cases where the LinkedIn account was strongly influenced by the employer – for example, the employee only created the account following a work recommendation, all content was provided by marketing and the profile is effectively an extension of the company page – it could be argued that the account is an employer-financed work tool. Nevertheless, the person remains the official owner vis-à-vis LinkedIn. At most, an employer can contractually agree that the employee will do certain things when leaving: e.g. change the current position in the profile, possibly report certain contacts to the successor, or that they will vote on how they use the network for a certain period of time (which, however, can quickly constitute a post-contractual non-compete clause, see below).

Practice shows that many employers rely on the fact that an employee who leaves the company voluntarily allows their connections to benefit the company – for example by introducing them to colleagues or informing customers who the new contact person will be. This can hardly be legally enforced unless it has been clearly agreed. Employers who use LinkedIn specifically for business should therefore decide from the outset: Do they rely on personnel profiles or official channels? One solution may be to set up a LinkedIn company page in parallel, where followers follow the company specifically, regardless of individuals. In addition, team accounts (e.g. an account “Employee first name of company XY”) can be used, although strictly speaking this violates LinkedIn guidelines, as an account should always represent a real person.

Employer branding via employee profiles is a double-edged sword. On the one hand authentic and effective, on the other hand legally uncertain for the company. The recommendation is usually to create contractual clarity when such strategies are used. (More on this below under recommendations for action).

Special case 2: Instagram influencers in the company

On Instagram and similar platforms, the focus is often on personality. Companies like to cooperate with influencers – in some cases, they also develop their own employees into influencers, e.g. to appeal to younger target groups. Example: A marketing employee runs a lifestyle channel on Instagram where she occasionally shares products or insights from her company. The company may support her by providing professional photo equipment, supplying content or boosting her reach (e.g. by linking to the official company account).

The following also applies here: if it is the employee’s personal account, which only “also” promotes the company, then in case of doubt she retains the account and all followers when she leaves the company. Even if the company has made a significant contribution to growth (e.g. through advertising, shoutouts or financial support), this does not result in ownership of the account. The employer’s investment was then more of a marketing effort, which in the worst-case scenario will evaporate when the person leaves. Companies should take this risk into account when implementing such personal branding strategies.

Conversely, employees who enrich their private channel with employer content should be aware that legal issues such as imprint obligations, advertising labeling and copyrights are relevant here. Anyone who posts company photos, for example, needs the rights to them or the employer must approve them. Ideally, such issues should be regulated in a social media policy.

If the Instagram account is formally managed as a company channel (e.g. it is called @firma_xyz and the employee is only an administrator), then it is not a personal account and clearly belongs to the company. However, companies often prefer to use official accounts for brands and have private employee accounts added voluntarily. The boundary between private and business is particularly blurred when company content is shared on private accounts. One possible solution: companies can contractually demand that it is made clear in the profile that the account is private (“opinions are my own” or similar) so as not to give the impression of an official channel.

To summarize: Instagram accounts that are managed personally but were set up with company resources are still personal accounts without a special agreement. At best, the company can exert moral or trademark influence (more on this in a moment), but cannot force a transfer. A company should therefore think carefully about how many resources it invests in something that it does not legally own. It may make more sense to push your own company Instagram, on which employees can then be officially seen.

Special case 3: Accounts without formal assignment (employee as admin)

In some situations, there are social media presences that run unofficially for the company but are administered via a private account. Examples: An enthusiastic employee opens a Facebook group for the company’s customers on their own initiative and manages it as an admin without an official assignment. Or an employee acts as the sole administrator of the LinkedIn company page, which officially belongs to the company. Such constellations are dangerous if the person leaves the company.

• Is the account actually attributable to the company, but only “unofficially” created? The company should then take control at the latest when the employee leaves. If nothing has been arranged beforehand, it can be difficult: The employee may have operated it for the company, but perhaps registered it in his name. In this case, the company can only argue that the employee must have been aware that the account belonged to the company via claims arising from management without mandate or implied agreements. It will often be necessary to reach an amicable agreement. It is strongly recommended to formalize such unofficial channels at an early stage, e.g. by adding additional admins (superiors) or changing the registration to a company address.
• For official company websites with only one admin employee, the situation is clearer: the website belongs to the company and the admin access is effectively a “resource”. In this case, the HR or IT department should ensure that admin rights are reassigned before the last working day. Failure to provide replacement admins in good time can end badly – in the worst case, a frustrated ex-employee can block or damage the account. Technically, platforms such as Facebook and LinkedIn offer the option of using several administrators; this option should always be used (principle of dual control in social media).
• Trademark and name rights: If an employee is the admin of an account that contains the company name or trademarks, the company has strong leverage from a trademark law perspective. An account that bears the company name, for example, may no longer be operated under the name after the admin has left the company, as this would be an unauthorized use of the trademark or name. In such cases, action can be taken against the ex-employee by means of injunctive relief in accordance with Section 12 of the German Civil Code (right to a name) or trademark law in order to prohibit further use of the company name in the account. In practice, this means that the account must either be handed over to the company or deleted. This scenario occurs in particular if no clear owner was named. Therefore: Even during employment, every company-related account should have a clear imprint or profile notice stating who it belongs to in order to avoid later disputes.

Conclusion on mixed and unofficial accounts: The more unclear the circumstances, the greater the risk of conflict. In case of doubt, the following applies: If the employee has the account under their own name and with their own access, they are initially in control of it. The company must then use legal levers or negotiations to obtain its assets. You have the best leverage if the account is obviously a company account (name/brand) – then trademark law and competition law apply. If this is not the case, often only persuasion or a contract will help.

Conflict avoidance through clear guidelines and contracts

In view of the uncertainties described above, the best advice is to proactively avoid conflicts over social media accounts. Companies should not wait until an employee is dismissed to think about who owns followers and accounts, but should set internal rules at an early stage. The following measures are recommended:

Social media policies and guidelines

A good first step is a social media policy within the company. This can be defined:

• What types of social media accounts are there in connection with the company (e.g. official company accounts, project-related accounts, personal accounts of employees with/without a connection to the company)?
• How are these accounts labeled and who is allowed to create them?
• Who “owns” the content and contacts there? (Even if not legally binding, a clear statement at least creates an agreement that can be used as a guide).
• How should mixed profiles be handled? E.g. recommendation to separate professional and private content where possible. Or a requirement that business content is only posted via approved channels.
• What happens when an employee leaves? For example: obligation to relinquish administrator rights, remove company logos from the private profile, indicate in the bio that you are no longer with company XYZ, etc.
• Handling of access data: It should be regulated that all company-related accounts are documented. Passwords for company accounts must be known to the employer. Of course, the employer may not demand this for personal accounts, but it should be made clear that personal accounts are officially excluded.

Such guidelines should be as specific as possible so that there are clear points of reference in the event of an emergency. They can also contain information on netiquette and compliance rules (e.g. a ban on airing internal problems in public). It is important to make these rules known to all employees and ideally have them confirm them (e.g. as an annex to the employment contract or in a company agreement).

Employment contract regulations

It is even more effective to introduce binding contractual clauses. The employment contracts of employees who work in the social media sector or where it is clear that they use their profiles for business purposes should contain specific provisions:

• Assignment of accounts: For example: “Social media accounts that are used exclusively or predominantly for work-related tasks are considered company accounts and must be handed over to the employer when leaving the company.” Or: “Accounts provided by the employer remain the property of the employer.”
• Obligation to cooperate upon resignation: e.g. “Upon resignation, the employee undertakes to provide the employer with all business contacts that were generated exclusively in the context of employment via social networks in a common format and to delete them from his or her personal account.” – Caution: Such an obligation could be interpreted as a post-contractual non-competition clause if it effectively means that the employee may no longer use these contacts. According to §§ 74 ff. HGB, a non-competition clause is only effective with compensation. The wording must therefore be carefully considered. A milder version: “Business contacts are to be documented internally and deleted on request, unless this conflicts with the employee’s own legitimate interests.” This leaves room without strictly prohibiting the employee from meeting people again.
• Labeling obligations: The contract could require the employee to always correctly state in social profiles whether the statements are private or business-related and to include certain disclaimers or the legal notice in the case of business-related use.
• Return of access data: Although this is a matter of course for company accounts, it can be expressly included, including a contractual penalty if someone refuses to hand over or deletes data.
• Copyright and rights of use: If the employee creates content (texts, images, videos) for social media, it should be stipulated that the employer is entitled to these or has the right to use them, even if they have appeared on the employee profile. This way, the employer can at least ensure reuse even if the account is removed.
• Non-competition and non-solicitation clauses: To prevent an employee from using the followers they have gained to poach customers or colleagues after leaving, a temporary non-solicitation clause can be agreed. For example: “For 12 months after leaving the company, the employee will not actively attempt to poach customers acquired via the company’s social media channels.” Care must be taken here to comply with the legal requirements – a general ban on contact would be a non-competition clause and only permissible with compensation. A mere non-solicitation clause (not approaching customers) can be agreed under certain circumstances without compensation if it is formulated as an ancillary agreement and is limited in terms of time/clientele. However, this is tricky and should be individually drafted in accordance with the law.

Existing contracts should be checked to see whether there are already provisions in place. There are often clauses such as “all work equipment and documents must be returned”. You could argue that a social media account financed by the employer falls under “work equipment”. But if in doubt, it should be specified, otherwise it remains unclear whether a virtual account is covered by such a clause.

Involvement of the works council

In larger companies with a works council, the topic of social media is also subject to co-determination (Section 87 (1) BetrVG). The works council must give its consent, particularly if the employer sets guidelines for use or conducts monitoring. A works agreement on social media can be useful to define the framework: for example, how working hours and social media are handled, who is allowed to make official statements, guidelines for private posts about the company, etc. In the context of “Who owns the accounts?”, a works agreement could, for example, stipulate that an official account must always be used for company-related social media work. Or, if private accounts are used, how content should be handed over when employees leave the company. Co-determination ensures that employee interests – such as the right to a private online presence – are also safeguarded.

Documentation and IT management

Apart from formal rules, one practical measure is important: the IT or communications department should keep a list of all relevant social media presences, including admins, access data (if they are company accounts) and responsible persons. This way, you don’t run the risk of “losing” an account simply because no one knows the access data after the person responsible has left.

In addition, a fixed point in a company’s offboarding process can be: “Social media handover done? (Yes/No)”. This checks whether the employee has been removed from all company accounts, whether they have returned all company devices (which may be connected) and whether any posts are planned to inform the outside world (e.g. “Employee X has left the company, new contact person is Y” – this can be done on the company website or via press releases to move followers accordingly).

Sensitization of employees

Last but not least: education and communication. Employees (especially in start-ups) often don’t think about these legal consequences when they use social media for their employer in the heat of the moment. The company should communicate early on what expectations and rules apply. Likewise, an employee who contributes their own channels should know what they are getting into. Ideally, you create a win-win situation: the employee strengthens their personal brand, the company benefits – and both sides know how to part ways fairly if the time comes.

For example, you can agree internally: “We will support your LinkedIn development (through training/budget), in return for which you agree to hand over your profile cleanly when you leave, i.e. to remove company references and make your network contacts available to us for the transition period.” Such agreements cannot be enforced down to the last detail, but an open culture prevents bad blood.

Case law: precedents that can be used as a guide

Although there has not yet been a supreme court ruling by the Federal Labor Court or the Federal Court of Justice on the question of ownership of social media accounts, some courts have set important cornerstones:

• ArbG Hamburg 2013 (XING contacts): No claim for deletion or surrender by the employer because it could not be proven that contacts were created during the work obligation. Employer bears full burden of proof. -> Bottom line: Personal LinkedIn/XING contacts should generally be left with the employee, unless explicitly agreed otherwise.
• AG Brandenburg 2018 (Facebook page): An employee’s Facebook account was left to the employee, as there was private registration and mixed content, despite the company link in the legal notice. -> Quintessence: Mixed profiles tend to fall to the employee in the absence of a clear agreement.
• ArbG Düsseldorf 2011 (Facebook post when reporting sick): Employee must not destroy the relationship of trust through disloyal social media behavior; social media posts can constitute breaches of duty under employment law. -> Quintessence: During the employment relationship, duties of loyalty also apply online; however, this also indirectly states that loyal use of personal accounts does not automatically give rise to employer rights.
• ArbG Münster – Recently, courts such as the ArbG Münster have also been dealing with issues relating to data protection and social media (for example with regard to the publication of employee photos or GDPR damages in the event of unauthorized data processing on social media). Although not directly related to the ownership of accounts, these decisions show that the courts are taking the digital sphere of the working world seriously. A ruling by the Münster Labor Court in 2021, for example, ordered an employer to pay €5,000 in damages because an employee photo was published on social media without valid consent (case no. 3 Ca 391/20). -> The bottom line: in the social media context, companies need to think not only about ownership, but also about data protection and personal rights, which in turn speaks in favor of defining clear responsibilities for accounts.
• Higher Regional Court of Celle 2015 (liability for employee posting): The Higher Regional Court of Celle ruled in a case (decision of 09.11.2015 – Ref. 13 U 95/15) that an employer (in this specific case, the state as the employer of a teacher) is liable for a social media post made by the employee. A teacher had used a copyright-infringing photo on the school website (as part of his official duties). The Higher Regional Court of Celle clarified that the employer was liable for this infringement as it occurred in the course of work. -> Transferable: If a social media account is to be regarded as a company channel, legal infringements by the employee in charge can be attributed to the employer. For our question, this means that the ownership of an account entails responsibility. A company should therefore only claim ownership where it can also exercise control and supervision. And vice versa: if an employee holds an account alone, they will also bear sole responsibility for it in the future.

These examples from case law underline the central message: without a clear allocation, legal uncertainties arise, usually to the detriment of the employer. It is therefore worth drawing preventive conclusions from these cases.

Recommendations for employers

In view of the many pitfalls, here are some specific recommendations on how employers should deal with the topic of “social media and employees”:

• 1. create clear relationships: Define for your company which social media presences are official and which are private. Communicate this demarcation to your employees. For example: “Our employees’ LinkedIn profiles are considered private, even if they state their company affiliation. Official communication takes place via our LinkedIn company page.” Or vice versa: “We expect certain roles to have a work-related account that is transferred to us when they leave” – the latter must be contractually secured, however.
• 2. introduce a social media policy: Establish written guidelines, ideally in collaboration with the works council, that govern how social media is handled. Define what happens when you leave the company. In this way, you avoid ambiguity and can refer to it in the event of a dispute. A good policy takes into account both company interests (protection of contacts, brand image) and employee interests (right to private expression of opinion, career profile).
• 3. contractual agreements: Adapt employment contracts for new employees if social media is part of the job description. For existing employees, supplementary agreements can be made (if the employees agree) or at least such topics can be negotiated during promotions/salary rounds. Managers or employees in sales/marketing in particular should have individual agreements on how to deal with social media accounts. For example, a clause can be agreed that a salesperson reports their LinkedIn contacts to the company when they leave so that customers can be informed. In doing so, observe the limits of employment law (no excessive commitment without compensation).
• 4. prefer company accounts: Wherever possible, use company accounts instead of personal accounts. For example, if you want to run a blog, set up a company blog with changing authors instead of outsourcing the blog to an employee’s personal account. The same applies to Twitter: a corporate account (possibly with the name of the product or company) is safer than the “@employeeXY” account, which is then the only one tweeting about news. Of course, personal accounts often have more charm and credibility – but you have to be aware of the trade-off. A middle way can be for employees to post personally, but always link to content that also exists on the company account. That way, at least the content stays with the company.
• 5. securing access: Administratively ensure that backup administrators are registered for all relevant social media channels. A single employee should never be the sole master of a password without the company having access in an emergency. Use password managers or central authorization systems. For networks that only allow one user (e.g. a single Instagram login), keep the access data in a safe place and change it immediately when the employee in charge leaves.
• 6. training and sensitization: Train your employees in the legal basics of social media at work. Make it clear to them what is permitted and where conflicts could arise. If employees understand that, for example, a XING contact they make at work is a customer contact from the employer’s point of view, they are more likely to understand why the employer is interested. Conversely, management should also understand the employees’ perspective: Their social media profiles are part of their professional identity. A respectful approach to both interests is beneficial.
• 7. seek amicable agreements when leaving the company: When a valued employee leaves the company, the topic of social media should be addressed in the exit interview. Amicable solutions can often be found: For example, the employee agrees to make a farewell post linking to the company account, or shares content from the successor for a while to “redirect” followers. You can’t force such goodwill actions, but you can suggest them. Perhaps a contractual severance arrangement is also conceivable: As part of a termination agreement, for example, it could be agreed that the employee will continue to manage the company account as an external consultant for X months or make joint posts with the successor. Creative solutions can help both sides here.
• 8. don’t panic when employees change: Ultimately, a company should not become completely dependent on the social media accounts of individual employees. Employees come and go – and with them often a part of the reach. This can never be completely prevented (and top people also bring their followers with them when they come). It is important that customer relationships and brand awareness are not solely dependent on one person. Maintain the corporate brand in parallel so that followers follow the company as a whole. And build on team presence with employees: e.g. present several faces of the company so that not everything is attached to one personal brand.

Conclusion

Social media accounts as a company asset are a double-edged sword: they are valuable, but legally difficult to grasp. Without a clear contractual basis, followers and profiles usually “belong” to the employee, especially in the case of personal accounts such as LinkedIn. Companies would do well to recognize this reality and take appropriate precautions. Preventive regulations, social media guidelines and awareness among all parties involved can largely avoid disputes. If it is unclear who is entitled to an account, the above-mentioned court decisions offer guidance – they tend to protect individual profiles if there is no clear company attribution.

For the self-employed, start-ups and growing companies that rely heavily on personal branding, it is important to find a healthy balance: On the one hand, allow employees to act as brand ambassadors and promote their personal brand development, while on the other hand safeguarding the company’s interests with smart strategies. This also means remaining fair and constructive during the separation. Legal means of coercion have limited effectiveness in this area and are often not very practical. It is better if there is no dispute at all because everyone knows where they stand.

In the end, professionalism is also decisive: a company that manages its social media presence strategically will look better in the eyes of the public than one that publicly squabbles with ex-employees over accounts. With a clear concept, legal protection and cooperative cooperation, the questions “Who owns the LinkedIn account after termination?” or “Can the employee take followers with them?” can be answered in such a way that all sides can be satisfied. This not only increases legal certainty, but also makes the company more attractive to new talent – because in the digital age, they are consciously looking for employers who deal with social media in a modern and fair way.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.