Situation
The employer and the employee terminate their employment relationship. However, even three months after the termination of employment, the employee has not updated his employment information on their LinkedIn profile. The profile still states that the employee works for the former employer, even though the employment relationship with the employee has already ended.
The employer has noticed the situation but is unsure how to address it from both a legal and practical perspective.
Does the GDPR Apply to This Situation, and Can the Former Employer Request Deletion of the Data?
The GDPR primarily protects the personal data of natural persons, rather than the rights, reputation, or commercial interests of legal entities. Therefore, in this situation, the company cannot rely on the GDPR as the legal basis for a claim aimed at protecting its own interests and requiring a former employee to delete or update information concerning his or her previous employment from their social media profiles.
Does This Situation Create Any Risks for the Employer?
Although the employer itself cannot rely on the GDPR as the legal basis for protecting its rights or reputation, a situation in which a former employee fails to update his employment information on social media for an extended period may, in certain circumstances, create risks for the employer as well.
First, there is a risk of misleading third parties. Clients and potential clients of the company may be misled about the person’s affiliation with the company. If, for example, the person is still presented on LinkedIn as an employee of a particular company, a client may reasonably assume that the person continues to work for the company, represents the company, or is part of its professional team. Depending on the person’s position and the nature of the company’s business, this may also create a mistaken impression regarding the qualifications and expertise of the company’s professionals, the services offered by the company, or the individuals authorised to provide clients with advice or other services.
This risk is particularly significant where the person previously held a position directly related to client relations, providing professional advice, or offering the company’s services. If a third party, relying on publicly available information, believes that the person still works for the company, practical problems may also arise. For example, a client may approach the former employee with a question or claim, believing that the person still represents the company.
Second, there is a reputational risk for the company. Publicly available information indicating a person’s affiliation with the company may create an association between the person and the company even after the employment relationship has ended. If, after leaving the company, the former employee commits an offence, becomes involved in a conflict of interest, becomes involved in a publicly controversial dispute, or otherwise finds themselves in a situation that negatively affects their reputation, there is a risk that the public or the media may continue to associate that person with the company. Consequently, the company’s name may be unnecessarily drawn into the situation, potentially causing reputational harm to the company.
Precautionary Measures for Employers
Employers should bear in mind that a situation which may initially appear insignificant can create practical and legal difficulties if a former employee refuses to update information on their private social media profiles. In such circumstances, it may be difficult for the employer to protect its interests, particularly where publicly available information about the person’s affiliation with the company creates a misleading impression among third parties that the employment relationship is still ongoing.
To prevent such disputes, or to make them easier to resolve should they arise, it would be advisable for the employer to include in the employment agreement or another contractual arrangement an obligation for the employee to update their social media profiles within a specified period following the termination of employment. The purpose of such an agreement should not be to control the individual’s private information, but rather to ensure that, following the termination of employment, publicly available information does not create a misleading impression that the employment relationship continues or that the person is authorised to represent the company.
At the same time, a distinction should be made between an obligation to update information and a requirement to delete information about previous employment. The employer would generally have no grounds to require a former employee to delete truthful information about their previous professional experience with the company, provided that the person has accurately indicated that the employment relationship has ended. In such circumstances, the person’s employment with the particular company forms part of their genuine professional experience, and the employer cannot prevent the former employee from referring to that experience in their professional profile or using it to present their professional background.
This story is based on real cases. All names and identifying details have been changed or omitted. This is not legal advice for any specific situation.
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Article written by: attorney at law Aleksandrs Potaičuks