It has not taken long for social media accounts to overtake traditional web pages in the customer awareness and marketing space. Social media providers, like Facebook and Twitter, provide their platforms to users free of charge. Nevertheless, companies spend significant resources crafting their messages and building awareness around their brand through these mediums. It follows that a company’s social media accounts, pages, and followers are business assets, right?Right? Read on.
One resource companies invest in to bolster their social media presence are the employees they hire to establish, grow, and manage social media accounts, craft and spread branding messages, and recruit followers. It may seem intuitive that a company “owns” the social media accounts these employees establish and use, but a recent set of cases illustrate that intuitive hunch may not be correct.
For example, in PhoneDog v. Kravitz, a recently settled Californiacase, ownership of the company Twitter account was at issue. PhoneDog is a mobile news and reviews website. Noah Kravits, a PhoneDog employee, created a Twitter account with the handle “@PhoneDog_Noah.”Kravitz used this Twitter account to generate product reviews. Over the course of his employment, he amassed 17,000 followers. Kravitz then left PhoneDog and went to work for a competitor. He kept the Twitter account but changed his handle to “@noahkravitz.” When Kravitz refused PhoneDog’s demands to relinquish the account, PhoneDog sued him for, among other things, trade secret misappropriation and conversion. Kravitz defended based upon Twitter’s terms of service, which state that accounts belong to Twitter, not the user. Kravitz claimed that Twitter, not PhoneDog, owned the account and that he possessed the sole right to useit and, therefore, keep his followers. According to Kravitz, absent an agreement with PhoneDog to the contrary, he was free to keep his account and change his handle. Fortunately for the parties, but unfortunately for us, the case settled before the court ruled on these ownership issues.
But some guidance was provided in a New York case, Ardis Health Care, LLC v. Nankivell. Similar to PhoneDog, in Ardis, a former employee walked away with the company social media accounts, refusing to turn over log in information or passwords. But there, the employer had required the employee to execute, at the commencement of employment, an “inventions” clause. This common provision states that work or inventions created or developed at work and for business purposes belong to the company. The company prevailed because of that agreement.
Two more cases, Eagle v. Morgan (Pa.) and Maremont v. Fredman (Ill.) addressed ownership of employee social media accounts where, following departure from employment, employers usurped the employees’ accounts which they had used to generate business messages and amass followers. In both cases, the former employees prevailed regarding ownership of the pages (and their followers) but could not establish damages for the employers’usurpation.
The “rules of the road”for employee social media accounts are still not well-established, and the legal issues surrounding such accounts are likely to remain murky for some time. But, in the meantime, here are nineproactive steps every employer should consider:
- Implement and enforce social media policies which provide guidance on the appropriate use of business related social media accounts;
- Address ownership of social media accounts and followers at the commencement of employment;
- Require all employees to execute an inventions clause at the commencement of employment;
- Require employees to provide all account information, login information and passwords to the Company, including consistent updates when pages are created, terminated or passwords or login information changes;
- Require, as a condition of employment, that all such social media information related in any way to the company be turned over at termination;
- Generally prohibit employees from posting in their own names on company social media platforms, using their names for company handles, or the company name for personal handles;
- If a particular situation arises which might require an employee to use his or her name, such as in the case of a well-known industry expert or celebrity, address ownership and termination issues with a more in depth contract;
- Control access to company social media accounts and passwords and take steps to prohibit individual employees’ ability to change usernames and passwords.
The issues surrounding company social media platforms are emerging and will continue to raise important issues and potential problems. Fried & Bonder has written a number of articles on this topic and is staying ahead of these issues by studying them and drafting appropriate contracts, policies, and procedures for its clients. Please contact one of our attorneys or subscribe to our newsletter or blog if you would like to continue to receive updated on this topic and others.