This was a topic that first got me thinking about the legal aspects of social media, and The Internet in a larger sense. It is a peculiar topic, because your social media site is on the one hand singular, and yet it is part of a larger grouping that requires a certain branding.There are no good legal guideposts in this matter either. Having seen the cases involving social media and companies, it is clear that nobody has a good handle on how to tackle this issue. Trade secrets? I know customer lists tend to be considered trade secrets. However, Twitter follower lists aren’t private generally, which is a basic tenet of a trade secret. Also, it seems that there would need to be a showing as to how Twitter subscribers translate into customers, especially to establish damages in a case.Looking at it in terms of ownership, there are different levels to that discussion.
Who set up the twitter account, was it set up before the employment began, what is the primary function of the twitter account? If the employer was involved in setting up the account, or the account was set up in order to help a specific employer (i.e. our firm has one Twitter account to handle our firm updates, @grlawgroup, but on Facebook and LinkedIn we have an account for the firm, an account for both myself and Jacob for the firm, and I have a personal Facebook page where I happen to discuss the firm in a personal manner) then there is more of a claim to the account belonging to the company. If the account was set up by the employee before the employment began, then the account is more likely to belong to the employee. This also holds true in looking at the intent of the account. Was it made to discuss work matters, or is it a personal account? If the account is mainly discussing things of a personal nature (dinner plans, weekend plans, etc…) then it likely is not the property of the employer.
Contrast this to an account that handles mainly employer matters (product releases, events, hours of operation, etc…), which is more likely to be found to belong to the employer.What if there is a true mix (where the company is being marketed, but as a part of the person, or the person had an account before the employment and has started to identify with their employer)? Well, to couch it in legal terms, if you can’t determine the intent by the content that is being published, then it seems proper to look at possession. Who created the account? Who was the intended beneficiary and audience of the account (was it made in contemplation of being used for the company, or for the individual)? Even then it may be difficult to parse out, although it seems that possession and intent would be the two driving factors in determining who has rights to the account.How about a circumstance where it isn’t possible to parse out a clear owner (the mix of company and personal possession and intent is too close to tell)? It is possible that damages could be given, if one side or the other (likely the company) could establish that they are losing customers and business if the employee leaves with the account. On the practice side, it would be good to get evidence of customer rates from any social media marketing, what those customers bought, and how business has increased/decreased since the account was created. There is also the possibility of an injunction. The parties could ask for the account to be closed, or for possession to be given to one party, or even have posted information pertinent to the moving party (either the former employee or the employer) removed from the account so it doesn’t reference them.
Given the lack of e-discovery being talked about with such cases (and the lack of these cases in general), it seems that injunctions are the easiest roads for courts to take.Even easier would be taking it out of the realm of possibilities and putting an agreement in your employment contract covering social media accounts. This agreement could cover how employee accounts cover the new company (in terms of requisites for maintaining employment). It could also address who owns the rights to accounts created for company usage, or content from grandfathered accounts that are used for company purposes. Since these agreements are generally upheld, they are the easiest way to make sure that both employees and employers can be safe in their social media interactions.
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