Social media is being increasingly used and ever-increasing in marketing concepts. New opportunities offered by networks such as Facebook or Twitter, however, also carry new legal risks. This paper provides an overview of the legal issues arising from the use of social media in Germany and Switzerland and highlights how these challenges can be met.
As with all other online activities, a country’s borders are effectively invalidated by the use of social media. Tweets or Facebook profiles are accessible worldwide. It may therefore be possible that a Swiss company using social media has to comply with German law. The same applies for companies from other EU member states or overseas targeting Swiss or German customers via social media platforms – they may be subject to Swiss or German legislation.
The mere accessibility of a Facebook profile in Switzerland or Germany does not yet make it necessary to comply with country-specific legal requirements. For such legislation to apply, a concrete connection to the relevant country or instruction to users from that country is required. As a rule, a Facebook profile page of a company that offers products in these markets, also addresses users from these countries. Here, a specific connection for the company in question must exist.
This connection arises when a profile page has shown a large number of users from Germany and/or Switzerland. In contrast, profile pages of companies which do not offer products in Central Europe or are not well-known, normally only address users from their home country. In this case, the necessary connection will not exist and compliance with the laws of Germany and/or Switzerland will not be required.
This paper addresses the requirements of both Swiss and German law. It should be noted that in certain cases, the question of the applicable law cannot be answered with certainty. In doubt the requirements of both legal systems should be observed.