As social media continues to permeate our everyday lives, more and more businesses have created social media accounts on websites such as LinkedIn, Twitter and Facebook in order to promote their brand. Does the singular act of creating a social media account by a business establish ownership, or should a business do more to establish actual ownership of the social media account? As the emerging laws dealing with social media continue to develop, businesses should be proactive in ensuring that they actually own the social media accounts that promote their brands.
First, let us imagine a scenario where the employer had a pre-existing social media account that it permitted an employee to use as part of the employee’s job duties. Is this enough to conclusively demonstrate that the business owns this account? The California case of PhoneDog v. Kravitz, No. C 11-03474 MEJ, 2011 U.S. Dist. LEXIS 129229 (N.D. Cal. Nov. 8, 2011) provides some insight into what employers can do to ensure ownership of pre-existing social media accounts. This dispute arose when a former employee, who was given use of a Twitter account as part of his job duties, did not relinquish control of the Twitter account after he left his employment. The employee went so far as to change the Twitter handle of this account. With respect to PhoneDog’s allegation that it owned the Twitter account, the court’s analysis suggests that factors establishing ownership of a social media include: (1) who originated and set up the social media account? (2) did the social media account exist prior to the start of the employee’s employment? and (3) Did the employer place restrictions on the use of the social media account?
Now, let us imagine a scenario where an employee created a social media account for her employer on her own initiative. The employer knows about this and is happy to let the employee continue to post on behalf of the company. Does the employer own this account since it is being used to promote the company? What happens to the social media account after the employee leaves? While the answers to these questions are not set in stone, an employer in this position may have a more difficult time establishing ownership of the social media account. For example, in Eagle v. Morgan, No. 11-4303, 2013 U.S. Dist. LEXIS 34220 (E.D. Penn. March 12, 2013), the court held that plaintiff’s former employer could not establish that it owned the LinkedIn account that plaintiff created because: (1) LinkedIn’s User Agreement stated that the account belonged to plaintiff; (2) plaintiff’s former employer had no official policy stating it owned the LinkedIn account; and (3) plaintiff’s former employer encouraged her to use the LinkedIn account as a marketing tool
When dealing with issues of ownership of a social media account, businesses should also be aware that California Labor Code Section 980(b) prevents them from requiring or requesting that an employee disclose a username or password for the purpose of accessing personal social media. Businesses may therefore wish to consider undertaking the following steps to ensure that they own their social media accounts:
• The employer should originate and set up an official social media account;
• The employer’s policies and procedures should clearly state that the employer, not the employee, owns the social media account;
• The employer should establish clearly defined policies regarding what an employee can and cannot do with the social media account;
• The employer should monitor use of its social media account to ensure it is being used within the scope of the employee’s job duties
• Prior to an employee’s departure, the employer should ensure that it can access the social media account, and it should change the password to prevent unauthorized access by the former employee.
While undertaking these steps will not be a guarantee against litigation, they should help mitigate any potential disputes over who owns the social media account.