Who Owns Your Company’s Social Media Account? #ItMayNotBeYou
by John G. Browning and Katherine B. Bandy
In this digital age, more and more companies are harnessing the commercial possibilities of social media. With over 900 million users on Facebook worldwide, over 178 million unique visitors to Twitter in February 2012, and with 65 percent of adult Americans on at least one social networking platform, businesses have realized that there is money to be realized from being “liked” on Facebook and followed on Twitter. In fact, experts predict that 2012 will mark the first time that online advertising will surpass print advertising in total dollars spent. Yet at the same time, the ubiquitous nature of social media has resulted in a blurring of the boundaries between online work and personal lives, as individuals increasingly access their social media accounts during the workday. If an employee and employer share in creating content, making connections and bringing in customers through such social media sites, who then “owns” the social media account?
The answer is far from clear, as litigation over these issues continues to dot the legal landscape. For example, in Sasqua Group, Inc. v. Courtney, an executive search firm maintained that the LinkedIn connections and Facebook relationships with clients cultivated by a former employee were trade secrets belonging to the firm. The court soundly rejected that view, holding that the contact information and professional details were hardly protected secrets in an age where “everyone . . . puts it out there for the world to see because people want to be connected now.”
Companies also have to be careful about their own treatment of boundaries between individuals and job-related social media activities. In Maremont v. Susan Fredman Design Group, the director of marketing (Maremont) for a Chicago-based interior design firm started and maintained the company’s Twitter and Facebook presences, generating content for and promoting her employer. Maremont also had personal social media accounts. While she was on a leave of absence following a car accident, personnel from the design group continued to post on all of these accounts without Maremont’s permission. She brought suit for this unauthorized use and access, among other claims, and the court denied the employer’s motion for summary judgment.
With the potential that an employer could be exposed to liability for unauthorized use of an account maintained by an employee, it becomes increasingly important for businesses to delineate clearly who owns or is an authorized user of a social media account. In Ardis Health, LLC v. Nankivell, Ardis hired Ashleigh Nankivell as a “video and social media producer” to develop videos, websites, blogs and social media pages touting the company’s products. Nankivell’s contract contained typical “work for hire” provisions, and stipulated that she would return all confidential information to her employer upon termination. After Nankivell was fired, Ardis obtained injunctive relief requiring Nankivell to return the passwords and restore the company’s access to the accounts that she had managed.
With companies actively encouraging employees to utilize social media as a marketing tool, litigation over ownership of social media accounts and content is likely to become more common. Assessing value, however, remains a moving target. In PhoneDog, LLC v. Noah Kravitz, PhoneDog is seeking $340,000 in damages for a former employee’s use of the “@PhoneDog_Noah” twitter handle. PhoneDog’s damages claim is based upon a supposed “market value” of Twitter followers of $2.50 each per month. Proving damages in such a case presents certain obstacles for companies like PhoneDog. Can Twitter followers be a trade secret when a list of followers is readily displayed on an account’s homepage, easily accessible to competitors and pretty much everybody else? And does value actually lie in followers who can choose at any time not to follow, or in the content of the tweets themselves?
Because of these unsettled issues and still-developing area of law, businesses would be well advised to implement social media policies that not only clarify who owns the social media accounts and content, but that also set forth who has access rights when the employment relationship ends. The employment agreements should also address such issues, and should require an ex-employee to promptly return all social media login and password information upon termination. With an ounce of prevention, companies seeking to protect their social media presence can save themselves pounds of legal bills.
John G. Browning is a Partner at Lewis Brisbois Bisgaard & Smith LLP and Katherine B. Bandy is an associate at the firm. They can be reached at firstname.lastname@example.org and email@example.com, respectively.