Please read the latest post in The Labor Dish, our employment and labor blog about legal issues important to US employers:  

At home, social media dilemmas include being 62 weeks deep in a social media account, and accidentally dropping a dreaded double-tap, “liking” a photo and releasing a notification that reveals your not-so-secret surveillance. It gets worse. What if you were perusing the account of an ex’s new flame?

At work, social media can present even graver issues. As employers adjust to using social media, courts struggle to determine who owns work-related social media accounts: the employer or the former employee?

Employers now need to address ownership to avoid losing valuable social media assets.

To Own or Not To Own, That is the Question   

Employers rightly ask whether ’tis nobler in the mind to suffer the slings and arrows of marketing losses by not utilizing social media, or to take arms against a sea of potential risks. More and more employers are taking to social media as part of their marketing plan.

In doing so, employers should first weigh the inherent risks of having an employee use a personal social media account for business purposes. Typically, that is sub-optimal.  There are often state laws prohibiting employers from requesting or requiring: (1) employees’ social media usernames and passwords; (2) that employees access personal social media in front of the employer; or (3) that employees divulge personal social media information.

These laws are ample incentives to make sure that any social media accounts are clearly designated as corporate, as opposed to personal. While the line is often fuzzy, employers can avoid some social media pitfalls by staking out ownership and crafting social media policies that reinforce that claim.

Ownership Of ….

There are several components to social media ownership:

  • Account name
  • Account relationships (the “goodwill” that accounts build with other accounts, with brands, with advertisers, with influencers, and with their followers — often monetizable)
  • Account followers/connections
  • Account password
  • Account metrics
  • Right to access and control account content (each post is a fine balance of aesthetics and atmospherics centering around content, timing, and overall strategy with the upload and delete decision being key)

Each ownership component is potentially distinct, particularly when employees are asked to use social media to market and promote a business’s products or services. While employers may wonder whether a Twitter handle by any other name might still smell as sweet, seasoned social media users appreciate that every component is uniquely valuable.

For example, Eagle v. Morgan, No. CIV.A. 11-4303, 2012 WL 4739436 (E.D. Pa. 2012) addressed a dispute over the ownership of a LinkedIn account.  There, the former employer accessed the LinkedIn account, changed the password, and updated the account with information on the former employee’s successor.   The former employee won but failed to prove damages.

Another employer ended up in court when an employee left the company and took the Twitter account (and its 17000 followers). Although the parties settled, the employer’s claims of misappropriation of trade secrets, conversion, and intentional interference survived a motion to dismiss. PhoneDog v. Kravitz, No. C 11-03474 MEJ, 2012 WL 273323 (N.D. Cal. 2012)

Practice Pointers

To minimize ownership battles, there are steps to undertake.

The must list includes the following:

  • A signed written agreement spelling out that the employer owns the account, customer lists, friends, followers, content, username, passwords, and e-mail addresses;
  • A clause indicating that the account is for business, not personal use;
  • A clause agreeing to register the social media accounts in the company name;
  • A policy stating that whatever the employee creates on company time or with company resources belongs solely to the employer; and
  • A procedure outlining the return of login information upon extended absences or departures.

The “nice but not necessities” includes the following additional steps:

  • A prohibition on employees conducting company business over social media using personal accounts held in their own name;
  • A policy limiting the number of employees with administrative control over the account(s) and designating the specific employees that have permission to post on the account;
  • A clause highlighting that the account login information is confidential;
  • A guide setting out acceptable content;
  • A liquidated damages provisions establishing damages due to the difficulty of calculating damages in ownership litigation; and
  • A non-solicit clause setting limits on communications over social media with the former employer’s clients and employees for a period of time

When mixing and matching from the bullet points above, employers should be cognizant that policies that are too draconian may affect recruiting, particularly in industries where the employee has a personal brand that has its own value. Employers must strike a balance between protecting content and protecting culture in their workplace.

Despite the risks, the considerations, and the policy choices to be made, employers may doubt the stars are fire, doubt the sun doth move, doubt truth to be a liar, but should never doubt the power of social media. Nor the importance of planning its ownership in advance.