Opportunities and Risks of Business Communication via Messenger Services

Opportunities and Risks of Business Communication via Messenger Services

The Corona pandemic and the corresponding protective measures issued by the Federal Council have resulted in many employees working from home. This work model gives digitalization a boost and means that, in addition to tried and tested e-mail communication, employees are also switching to communication channels such as messenger services (i.e. WhatsApp, Viber, Signal, etc.). This certainly allows for a quick, informal and uncomplicated exchange between employees in their home offices; however, this communication channel also harbours certain risks and raises certain legal questions. Two such aspects are examined below.

1. Labour Law Aspects
From a labour law perspective, the problem is that employees can be reached at any time via messenger services. This permanent availability is difficult to reconcile with the labour law provisions in the Labour Act (ArG) and the labour law regulations. In particular, the labour law prescribes a minimum duration of breaks (Art. 15 ArG) as well as a minimum daily rest period of 11 (or 14) consecutive hours (Art. 15a and Art. 17a ArG). These breaks are not guaranteed if the employee has to respond to business messages, especially since even short requests defeat the purpose of having time to rest. The permanent availability of the employee via messenger services is also incompatible with the provisions of Art. 328 et seq. OR, because this provision allows the employee to be granted sufficient time for relaxation and leisure.

Certainly, employees generally have no obligation to respond to messages from their employer outside of the contractually agreed working hours. In practice, however, there can certainly be social pressure on employees, which is particularly pronounced in so-called group chats with several employees and the resulting competition. In order to avoid problems or to create a framework for business communication via messenger services, the following measures, in particular, must be implemented:

  • Business Phone: In order to maintain the boundaries between the professional and private spheres, it is a good idea to provide employees with a smartphone for business purposes. This enables employees to use only their private devices during breaks and at the end of the day, for example, thereby shielding themselves from business messages. It is also important, not least for data protection reasons, to prevent employees’ private mobile numbers from being visible to all chat users in group chats.
  • User Regulations: When using messenger services for business purposes, it is necessary to adopt a so-called User Regulation, which defines the most basic rules, such as the duration of availability, etc. Other topics such as mobbing and sexism should also be addressed in the User Regulations and principles of conduct should be defined.

2. Copyright Aspects
According to the current terms of use, the “WhatsApp App” in particular may only be used for private purposes. Under the heading “Permitted Use of Our Services” it is explicitly stated that the services of “WhatsApp App” may not be used in a way that “involves any non-private use of our services“. Non-private use of the normal “WhatsApp App” also includes business communication between employer and employee.  Any such violation of the WhatsApp terms of use may under certain circumstances have civil (Art. 61 ff. URG) or even criminal (Art. 67 ff. URG) consequences. The author is not aware of whether such proceedings have taken place so far.

For commercial use, WhatsApp offers alternative apps, namely the “WhatsApp Business App” and the paid “WhatsApp Business API“, the latter being preferred for privacy reasons. Other messenger providers also offer free applications that are suitable for business communication.

In addition to the aspects briefly outlined above, the business use of messenger services involves numerous data protection problems, which must be thoroughly clarified with a specialist before use. This is the only way to avoid severe sanctions.

-MLaw Artan Sadiku, Attorney at Law at Studhalter & Meier Rechtsanwälte AG

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