The use of social media in the franchise relationship

Social media can no longer be ignored in everyday life. Linkedin, Twitter, Facebook and other social media have become extremely popular in our society in a short time.
Social media can also play an important role in franchise relationships. For example, a non-solicitation clause is often included in a franchise agreement. This clause prohibits the franchisee from entering into or maintaining business contacts with relations of the former franchisor for a period of (usually) one year after the termination of the franchise agreement. This is interpreted in a broad sense, maintaining contacts via social media, such as LinkedIn, can under certain circumstances result in an act contrary to the non-solicitation clause.

Under certain circumstances, the posting by a franchisee of offensive comments about the franchisor via social media, such as Facebook and Twitter, may constitute an attributable shortcoming on the basis of which the franchise agreement may be terminated prematurely (out of court) by the franchisor. It is therefore important that both the franchisor and the franchisee behave carefully during the franchise relationship and also afterwards and refrain from all negative statements or other behavior that could cause damage to the other party. This also includes statements via social media.

Social media in the employment relationship

Social media is also playing an increasingly important role in employment relationships. Both a franchisor and a franchisee typically employ staff. There is a good chance that franchisors and franchisees have had to deal with a labor dispute in their capacity as employers.

All kinds of experiences are shared and revealed via social media. Employees use social media inappropriately and inappropriately, in private but also in business. Sometimes in such a way that it can influence the employment relationship. Where is the limit in the context of an employment relationship, what is and what is not allowed? In recent years, the court has ruled in several judgments on the use of various social media in the relationship between employer and (former) employee. In most cases, this involves violating a non-solicitation clause via social media or  posting negative messages about the employer on social media.

Breach of relationship clause via social media

A non-solicitation clause is included in many employment contracts to prevent an employee from maintaining business contacts with relations of the employer after the end of the employment contract. Violation of a non-solicitation clause can also take place via social media, according to case law. The court in Arnhem considered that an employee who had added a relationship of his former employer to his LinkedIn account acted in violation of his relationship clause. The judge regarded this connection via LinkedIn as the first contact between the employee and the relationship of his former employer. With regard to Twitter, the Court of Appeal in The Hague has considered that posting messages on Twitter by an employee on behalf of his new employer did not conflict with the non-solicitation clause that the employee had agreed with his former employer. Unlike Facebook or LinkedIn, following on Twitter is a unilateral action on the part of the follower, over which the holder of the Twitter account has no influence since a prior invitation or acceptance is not necessary, according to the Court.  In many cases, this line of employment law can be extended to franchising relationships, particularly if they contain similar non-solicitation clauses.

Negative comments on social media

Case law has considered that an employee may express his opinion about his employer and colleagues, as long as the standards of decency are not exceeded. What to do with an employee who makes insulting comments about his employer or his colleagues on social media?

On the one hand, the employee has freedom of expression, on the other hand, the court has ruled that posting messages on Facebook does not simply belong to the private domain of the employee. Similarly, the employee who was dissatisfied with the fact that he was not receiving an advance on his salary from his employer experienced this. Shortly afterwards, the employee posted a message on Facebook in which he attributed all sorts of extremely improper qualifications to his employer, among other things. The subdistrict court terminated the employment contract for urgent reasons, considering that such statements do not fall under freedom of expression, but can be regarded as gross insult. This line can also be extended to the franchise relationship

Conclusion

It is a fact that social media are becoming increasingly important in today’s society. Social media has such a major influence on daily life, both private and business, that it is important to regulate it. As outlined above, this also applies to an increasing extent in franchise relationships and in employment relationships. Of course we can advise you further on this if desired.

Ludwig & Van Dam franchise attorneys, franchise legal advice