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Hands off my Facebook

Social media in the workplace – employer’s or employee’s? 

Bryce Matthewson, Entrepreneur, 10 September 2013  Share  0 comments  Print

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The concepts of successful business strategy and social media are becoming synonymous in the 21st century. Businesses who don’t embrace the benefits of social media are frankly the exception rather than the rule, but as with most benefits, they do come with their own risks. One of these risks, which is becoming increasingly apparent, is the question of who owns these elusive accounts?

It goes without saying that social media accounts such as Facebook and Twitter can be of significant commercial value to a business. It provides a targeted, captive audience for legal direct marketing, and also a platform on which to engage on a one-to-one basis with customers.

The value of the medium is clearly reflected by the increasing trend of businesses to ‘sell space’ on their social media accounts. Magazines, sports stars, and celebrities are often reported to be selling Twitter tweets and Facebook posts.

Who’s posting?

As a result of the novelty of social media, in many instances it is not the business that has established an account but rather employees of those businesses, who tweet or post on behalf of the business.

When former BBC Political Correspondent Laura Kuenssberg left the BBC to join ITV, she had established a Twitter following of almost 60 000 persons with her Twitter handle, @BBCLauraK.

She was in effect tweeting on behalf of the BBC while using this account, but when she left, her account was renamed @ITVLauraK and she took her 60 000 followers with her to the competitor news station.

Examples like this give rise to the very important question of who owns these accounts? It’s a long standing principle that client lists do constitute company property. But will the same be true for Twitter followers, Facebook friends, and even LinkedIn connections?

How will it affect your business if an employee leaves your business and ‘steals’ the social media accounts? Likewise, how will a former employee react if you, as their erstwhile employer, demand that they hand their social media accounts over?

Leaving with Twitter lists

The issue recently came to a head in a dispute between Phonedog Media LLC, an online blog site focusing on mobile phone news and reviews, and its former employee, Noah Kravitz. Kravitz, while tweeting on behalf of Phonedog, had gathered some 17 000 followers, which Phonedog alleged were each valued at $2,50 per month.

After Kravitz left the business, and took ‘his’ account with him, Phonedog instituted action against him, seeking to have the account returned to it and damages in the amount of $340 000.

If Kravitz had been leaving with a client list the case would have been the proverbial ‘slam dunk’ for Phonedog, but he wasn’t, he was leaving with a Twitter account which he had established and run while employed by Phonedog.

In Phonedog’s application it acknowledged that it could not own the Twitter account, but rather asserted that it had an ownership interest in the account, and more importantly in the list of ‘followers’.

Somewhat regrettably, after Kravitz failed in an initial application to dismiss, the parties reached a settlement and accordingly the issue has still not been pronounced upon by a Court. We now have to wait and see how the courts will deal with the issue in the future.

Who owns the IP?

The issues raised by these disputes are not simple and stretch the bounds of existing laws to the extent that the answer is very often not clear. It involves issues of copyright, trade marks, trade secrets, privacy, restraint of trade and personality/image rights.

This uncertainty leaves both the employer and the employee in a rather precarious position of not knowing where they stand with issues of this nature.

Despite this uncertainty, in a statement made by Kravitz after the matter had been settled, he commented:

“If anything good has come of this, I hope it’s that other employers and employees can recognise the importance of social media…  good contracts and specific work agreements are important, and the responsibility for constructing them lies with both parties.”

Business should not simply rely on existing IP transfer policies and agreements, as it is not clear whether these will be sufficiently broad to include social media accounts. Businesses must as a matter of good governance, and to avoid disputes of this nature arising, put in place comprehensive social media policies dealing with these issues.

These policies should also deal with the additional risks associated with social media such as security of accounts, management of content and appropriateness of conduct on personal social media accounts.

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About the author

Bryce Matthewson, Entrepreneur

Bryce Matthewson (BSc (Chem),LLB, LLM) is a candidate attorney in the patent litigation department at Spoor and Fisher. He assists with all matters relating to litigation of patents, designs and plant breeder rights. He maintains a particular interest in matters relating to technology, and their impact on the law and on the flip side, has an active interest in matters relating to traditional knowledge rights.

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