Works council elections 2026: Social media in election campaigns

Campaigning on social media harbours legal risks – impermissible campaigning on company channels can make works council elections contestable.

Flyers and notices are a thing of the past – election campaigns for works council elections are increasingly taking place digitally in 2026. WhatsApp groups, LinkedIn posts and Instagram stories are taking the place of the notice board. However, campaigning online entails legal risks.

A case before Cologne Regional Labour Court shows: Unauthorised election campaigning on company channels can result in the election being contested. Employers particularly have to exercise caution. They are responsible for ensuring fair conditions and they also bear the costs if an election is successfully contested. Read this article to find out what is permitted, what the limits are and what companies should pay attention to now.

1. Election campaigning is permitted – but there are limits

In principle, campaigning is permissible and constitutionally protected by the freedom of opinion under Article 5 (1) German Basic Law (GG) and for associations under Article 9 (3) German Basic Law (GG). It is also generally permissible to make bold statements and to criticise other candidates.

But be careful: If statements are defamatory or inflammatory then that is going too far. In such cases, it may be deemed to be unlawfully influencing an election within the meaning of section 20 (2) German Works Constitution Act (BetrVG) – with potential consequences under criminal law (section 119 (1) no. 1 German Works Constitution Act (BetrVG)) and the election might be contested.

Of course, the case is the same online – for example with memes, overheated comments or questionable polemics on social networks.

2. Cologne Regional Labour Court: WhatsApp election campaigning led to an election being contested

A sensational case before Cologne Regional Labour Court shows how misusing company resources and functions in digital election campaigns can result in the election being invalid (decision of 6 October 2023 - case no.: 9 TaBV 14/23)

An election committee chairman, who was also the works council chair and dispatcher, used his position to encourage people to vote for his list and to criticise competing lists through WhatsApp broadcast messages. He used the contact details he had received from numerous employees in the course of his work.

Cologne Labour Court declared the election invalid at first instance (case no.: 11 BV 101/22) - Cologne Regional Labour Court confirmed this decision.

Basic problem: The candidate had used privileged resources (contact details, communication channel related to the works council) and in doing so violated the principle of equal opportunities. Other candidates did not have comparable opportunities to campaign.

3. The principle of equal opportunities also applies digitally

Although the principle of equal opportunities is not explicitly regulated in the German Works Constitution Act (BetrVG), it is a fundamental general electoral principle (section 19 (1) BetrVG). Accordingly, all candidates must be able to campaign under comparable conditions.

Violations of this principle in the digital sphere can occur, for example, if:

• a candidate uses access to the social media channels of the works council or company exclusively to promote themselves,
• an employee with admin access to company channels reposts their own election campaign content,
• certain candidates are presented preferentially on company channels or
• the employer makes advertising platforms available to certain candidates but excludes others.

4. Employers must exercise restraint, but they do not have to remain completely silent

Employers are not prohibited from making any statements at all during election campaigns. According to the case law of the German Federal Labour Court (decision of 25 October 2017 - 7 ABR 10/16), they may in principle express criticism or positive remarks towards the existing works council – provided that no advantages are granted and no threats of disadvantages are made (section 20 (2) German Works Constitution Act (BetrVG)).

Requiring them to be completely neutral would lead to considerable uncertainties in practice. Nevertheless, no measures may be taken that organisationally, technically or financially support individual candidates or lists, be it through funds, service providers or internal communication structures.

Conclusion: use common sense with digital election campaigning

The 2026 works council elections will be more digital than ever. Social media offers new opportunities for visibility and dialogue, but also new legal pitfalls. All participants should know and follow the rules of the game. Employers have a special responsibility during the works council election. Although they are allowed to express criticism of the previous cooperation with the previous works council, it is not permissible – in general or on social media – to make organised attempts to exert influence or to take measures to support one side. To act in a legally compliant manner, employers should not allow specific company resources to be used, e.g. through certain limited channels, for campaign purposes of individual candidates.

Democratic elections thrive on fair competition. Those who use digital communication wisely and in a legally compliant manner can contribute to the legitimacy of the works council and strengthen trust in employee codetermination.