Is the recruitment of employees via XING unfair competition?

The Regional Court (LG) Heidelberg had to decide whether a message sent to employees of a competing company via the social media platform XING was contrary to competition law and obliged the recruiting party to refrain from such conduct.

An employee of a competitor contacted two employees of an IT staffing service provider via the internet platform XING. In doing so, he wrote to them: "You hopefully know what kind of company you've ended up in. I simply wish you the best of luck. If you have any questions, I'm happy to provide information."

The IT staffing service provider viewed this as conduct contrary to competition law, sent a cease-and-desist letter to the competitor and demanded the provision of a statutory declaration with a penalty clause for refraining from such conduct. Although the competitor provided a declaration refraining from such conduct, he refused to pay the cease-and-desist costs incurred as a result of the letter.

Court decision

The Regional Court (LG) Heidelberg decided byUrteil vom 23.05.2012, Az. 1 S 58/11that the cease-and-desist costs must be paid.

The sending of the email would only not constitute a business activity if a natural person acted as a consumer in their own interest. However, the competitor here had only created a profile on the XING platform for the company on behalf of which he appeared in the email constituting unfair competition. In doing so, he created the objective appearance of business-related activity.

In terms of substance, the Regional Court (LG) Heidelberg regarded the statements as disparagement contrary to competition law, since the statements were derogatory without factual justification. Moreover, there was deliberate obstruction through unfair recruitment of employees.

Conclusion

The recruitment of employees via social media platforms such as XING is contrary to competition law if a competitor attempts to win employees for his own company through deliberate sending of derogatory messages. However, this objective of the competitor must then also be proven, as recruitment to promote one's own company is basically permissible.