By Christopher M. Mason
Social media has proven its value as a powerful tool for businesses by creating inexpensive global platforms for marketing products and services, soliciting feedback, and strengthening customer connections. Yet the very social media accounts used to promote a business may not belong to it. Ownership rights to social media accounts used to promote a company have been contested by former employees who created, maintained, and produced content for those accounts. To maintain control over their social media, companies should develop policies and agreements affirming ownership over their social media, while guiding employees who manage them.
Most businesses understandably assume that they own their social media accounts, overlooking the need for right of ownership agreements. However, a company does not inherently own the social media accounts developed by its employees, even if those accounts have a connection to the company. Some courts have even proclaimed that social media accounts created at an employer’s behest, using the employer’s name, and maintained at the instruction of the employer, still remained the property of the departing employee absent an appropriate agreement. In one case, an employer sued a former employee who continued to use a Twitter account previously used to promote the company. During his employment, the employee had amassed over 17,000 followers of the account. When he departed the company, the employee simply changed the Twitter handle, dropping his former employer’s connection to the account. The employer claimed that the account and followers belonged to the company. Similar lawsuits have been filed by both employers and employees concerning an employee’s rights over LinkedIn, Facebook, and other social media accounts.
Proper agreements and policies will severally limit the reach of these case decisions. Even in the absence of express language in an agreement providing for the employer’s explicit ownership of social media accounts developed in its name, courts have generally extended social networking ownership rights through general employer right of ownership agreements. Thus, general agreements providing that all work created or developed by an employee remains the property of the employer are often sufficient; however, employers are well advised not to rely on these types of general agreements. The more explicit the right is articulated in an agreement, the better.
The variety of ownership components to social media complicates matters. This includes the rights over access and control, account name, customer contact information linked to the account, and content published on the account. A general agreement may not be drafted broadly enough to clarify full ownership rights and could leave employers with gaps in protection.
For instance, some social networking platforms have the ability to gather and store enough information on clients and potential customers so as to expose their identity, which the company may treat as proprietary. Employees who have access to this type of information through their own social media accounts may claim that the information belongs to them, or, at a minimum, they have a right to continue accessing the information.
To protect their rights and reduce the risk of litigation, employers should create and register formal social media accounts under their own name and provide multiple employees with access. This will help prevent individual claims of ownership or issues with accessing accounts should a dispute arise. Those employees with access should sign explicit agreements acknowledging that all rights relating to the social networking accounts are and remain the exclusive property of the company.
In addition to being explicit and supported by independent written policies, agreements should provide for confidentiality of all access information, and precise limitations on employee use of the social media accounts, both during and after employment. Ideally, right of ownership agreements should include provisions governing the right to injunctive relief and damages in the event of dispute.
Keep in mind that with ownership comes responsibility. Employers increase their likelihood of liability for claims of defamation, copyright infringement, and similar misconduct undertaken through social networking on their behalf. Thus, policies should provide definitive procedures for social media use, as well as publication procedures. Limitations on content, oversight and review processes, and clear warnings against defamation and infringement may eliminate, or at least help to limit, the prospect for damages in the event of employee social media missteps.
While employers may, and should, restrict employee access to and use of company social media accounts, employers do not have the same right to limit employee use of their personal social media. Other legal limitations may, in certain circumstances, protect an employee’s independence in their use of social media, so overreaching policies can put an employer at risk. Yet, as the various principles discussed above demonstrate, the rights and responsibilities of ownership over social media can be reasonably managed through thoughtful consideration and thorough oversight.
Christopher M. Mason is an attorney with Jennings, Strouss & Salmon, P.L.C. in Phoenix, Arizona. He can be reached at firstname.lastname@example.org. For more information on labor and employment legal matter, visit www.employmentlawtimes.com.