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In 6 steps to a legally secure Facebook presence
A befitting Facebook presence is nowadays good form for companies. For commercial users, there is hardly a better way to get in touch with customers and to communicate with them simply and effectively. Unfortunately, when creating and operating a Facebook page, social media managers have numerous pitfalls that should not be underestimated, and the consequences of which can range from blocking the Facebook page to warning procedures and serious economic damage to the company. For this reason, it is extremely important to make your presence on Facebook legally secure and professional. This avoids legal difficulties and customer loyalty can be successfully strengthened.
As on other websites, there is also an imprint obligation on Facebook. This is stipulated in § 5 TMG: "Service providers have to keep the following information easily recognizable, directly accessible and constantly available for business-like telemedia, which are usually offered for a fee: 1. the name and address, ... 2. Information that enables quick electronic contact and direct communication with you, including the address of the electronic mail, (...) “A company's Facebook page clearly falls within this regulation, because it is not operated for private or personal purposes. On the contrary, as a rule, it is intended to increase awareness and thus also the company's turnover.
Particular attention should be paid to the text passage "(...) easily recognizable, directly accessible (...)". The OLG Munich decided that an imprint is easily accessible if it only requires two clicks. In order to meet this requirement, there are two options for a Facebook imprint:
- The imprint can be found under Info.
- On the Info / Imprint subpage there is a link that leads to the imprint on the company's website.
You will find the Imprint area under Page Settings - Page Info - Imprint.
If the imprint is linked from the company website, it is essential to ensure that the name of the website operator matches that of the Facebook page. It is advisable to state in the imprint of the website that this also applies to the Facebook page.
The mobile version of the Facebook page can also represent a particular stumbling block, as the imprint is often not displayed correctly on this. It is therefore essential to ensure that the Facebook imprint not only appears correctly on the desktop version, but also on the mobile version.
Contests and promotions
For a Facebook competition, not only the general laws apply, but also the guidelines of Facebook. These should also be strictly adhered to. Facebook has set up numerous rules for competitions and promotions:
- Facebook functions such as commenting, sharing and liking as well as public and private messages may be used to participate in a promotion or a competition.
- Inviting participants to tag photos, share messages or use Twitter hashtags to take part in a competition in this way is prohibited. Tagging of a picture is allowed if the person concerned can be seen in the picture.
- The automatic participation of fans of a company in a competition is permitted.
- Every Facebook competition must include a Facebook disclaimer.
- When announcing the winners, make sure that you comply with all data protection regulations.
Organizers of a competition or promotion act at their own risk and are not supported by Facebook. If the in-house guidelines of Facebook are violated, the site may be blocked in the worst case.
Photos and videos
The following applies to all photos, graphics and videos used on our own Facebook page: These are subject to applicable copyright law. And if this is not the responsibility of the operator of the Facebook page, he may not simply use the images, graphics and videos. Depending on the source of the image material, different provisions apply:
- Pictures from own hand: Self-made photos, graphics and videos may be used according to § 12 UrhG, provided that their content does not violate the guidelines of Facebook. However, it can also be problematic here if people can be recognized in the photos and videos. Then the right to one's own picture comes into play. This means that everyone has the right to determine for themselves whether and in what context pictures of them are published. For example, § 22 of the KunstUrhG states: “Images may only be distributed or publicly displayed with the consent of the person depicted. In case of doubt, consent is deemed to have been given if the person depicted has received remuneration for being shown. (...) In §§ 23 and 24 KunstUrhG there are exceptions to this regulation. For example, pictures of people that appear only as an accessory to a landscape or other location, as well as pictures of meetings and similar events in which the people took part, may be published without the required consent. However, this only applies as long as a legitimate interest of the persons depicted or their relatives, if the persons concerned have already died, is not violated. The law also makes an exception for persons of contemporary history who are in public. In case of doubt, according to the European Court of Human Rights, a balance has to be found between Art Copyright Law and general personal rights. Particularly important for companies: If employees can be seen on the photos they have taken, their consent is only valid as long as their employment relationship is upheld. If the images are to be used beyond the duration of the employment relationship, the employees must give their separate consent.
- Images from image services: Portals such as iStockphoto, Fotolia, Pixelio and Getty Images offer the rights to use images in accordance with Section 31 (2) UrhG against payment. Both the offer and the conditions of use of the individual image databases differ from one another.
- Pictures that are under a Creative Commons license: Flickr is one of the best-known photo portals that offer pictures under a free Creative Commons license. This license also refers to Section 31 (2) UrhG and permits the use of the images offered, but subject to certain conditions. These include, among other things, the naming and linking of the author, the naming and linking of the respective license, the waiver of editing the image, as well as the exclusively non-commercial use of the images. These requirements can vary from provider to provider. Commercial use can also be permitted.
- Images from the Google image search: The Google image search is an almost inexhaustible source for images from a wide variety of topics. However, the following applies here: If the author does not expressly consent to the use of his images by third parties, this is prohibited.
If videos are published on Facebook, it is advisable to pay attention to the details. For example, a song that can be heard in the background of the video could violate copyrights.
When choosing the page name on Facebook, care should be taken not to violate any third-party brand and name rights. A violation of this can result in injunctive relief and claims for damages.
The operator of a Facebook page is responsible for its content. Therefore, care must be taken to comply with both the legal requirements and the guidelines of Facebook. Companies are considered traders and must therefore create a company page on Facebook. If online shops present goods on their Facebook page, the principles of price clarity and price truth according to § 1 PAngV apply. It is particularly important to state the full price of the goods and the shipping costs incurred.
It can also be problematic when employees of a company post on its Facebook page. If an employee makes dubious statements on the company side, it ultimately falls back on the company. Careless postings can have extremely negative consequences not only for the employee concerned, but also for the company. Not to mention the risk of company secrets being revealed. For this reason, it is essential for every company that is represented on Facebook to provide its employees with guidelines for the correct use of Facebook.
If Facebook fans are allowed to post on the company's website, the operator of the website is generally not liable for their postings. If the postings by fans are illegal content, the operator of the site is liable for them if he comments on them or if he fails to initiate their deletion. Therefore, operators of Facebook pages should always keep an eye on the content of their page.
Facebook reserves the right to use all content posted. You should always bear this in mind before you post texts, images, videos, etc. on your Facebook page. These usage rights expire when the respective content is deleted. However, these are still stored by Facebook for a certain period of time. And if content was shared, the whole thing turned out to be even more difficult. In plain language, this means that content that has once been published on Facebook is as good as out of your control.
The like button
Companies can use a Like button integrated on their site to gain not only more users, but also greater awareness. Now, however, a large amount of data, such as the IP address, is transmitted via the Like button. Therefore, a separate declaration of consent from the user would actually be necessary. For this reason, many see the inclusion of the Like button as a data protection violation.
The Like button on companies' Facebook pages is repeatedly criticized by privacy advocates, which has already resulted in numerous warnings. For example, Allmedia GmbH from Sulzheim initiated a warning from an online retailer and competitor. He used the Like button on his own website, but without informing about it in his data protection declaration.
According to a decision by the Berlin Chamber of Commerce on September 24, 2011, the inclusion of the Like button is nothing that could be warned from a competition law point of view. To be on the safe side, however, it is advisable to include a so-called Facebook disclaimer on your own website if the Like button is available there. In this way, this Facebook function can also be designed in a legally secure manner.
The use of social media pages, especially Facebook, is essential for companies nowadays. Facebook is an ideal way to create closeness to potential customers, to increase your own level of awareness and to remain permanently in people's consciousness. However, there are numerous stumbling blocks that can have unpleasant legal consequences. It is therefore all the more important to inform yourself in detail about all legal bases and guidelines of Facebook, so that the social media presence becomes a complete success.
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