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Who owns social media produced by employees
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Who owns social media produced by employees

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  • 1. Who owns social media produced by employees? - An opportunity for HR to come to the forefront of this issue.In today’s world no individual or company can ignore the social media. You need to build a social andonline presence. Here is the level of current adoption. Face book has 800+ million active users, twitterhas 190 million active users and Linkedin has 150 million members. Facebook receives 65 billion viewsper month and linkedin signs up a new member every second. With this level of online engagement,companies have set up linkedin, facebook and twitter accounts. Corporate websites are part of Web 1.0while online social media presence is Web 2.0. And this level of activity will continue to increase as morecompanies employ designated employees to build a social media presence. Almost every global brandtoday already has a twitter handle and a facebook account to promote its business. And recruiting isincreasingly moving away from job boards to social media.If your employee uses social media to promote your business, interact with potential or existingcustomers, or recruit employees, what happens when that employee leaves? Who owns the account?You need to take steps to protect your employer. In this evolving field, laws are still being developedand hence you can take proactive steps to protect your employer’s business. Here are some highlights ofemerging case law in the US.First a case involving Twitter handle between PhoneDog.com and its former employee, Noah Kravitz.PhoneDog v. Kravitz. Last year, PhoneDog sued Mr. Kravitz, alleging that he had refused to return aTwitter handle that the company alleged belonged to it. In the complaint, PhoneDog alleged that, whilehe was employed by PhoneDog, Mr. Kravitz tweeted @Phonedog_Noah. It alleged that, as part of Mr.Kravitz’s employment, he submitted and video content to PhoneDog, which was then transmitted to itsusers via a variety of mediums, including the @Phonedog_Noah Twitter account. PhoneDog allegedthat, by the time Mr. Kravitz ended his employment with PhoneDog, he had amassed over 17,000followers. It alleged that, although it requested he relinquish use of the Twitter account, Mr. Kravitzinstead changed the handle to @noahkravitz and continued sending tweets under that name. PhoneDogsued Mr. Kravitz and alleged that, under unspecified “industry standards,” each follower was worth$2.50 a month, so that Mr. Kravitz was liable for $340,000 in damages. The PhoneDog case is now indiscovery.Another case involves the ownership of a LinkedIn account. In Eagle v. Morgan, Case, Linda Eagle, thefounder and executive of Edcomm, Inc., alleged that she had established and maintained a LinkedInaccount. After her company was purchased by another company, Dr. Eagle was involuntarily terminated.She alleged that, when she attempted to access her LinkedIn account after her termination, she couldnot, because a former colleague changed the password and prevented her access. She alleged that shewas not able to regain access to her LinkedIn account for three weeks. In subsequent litigation betweenDr. Eagle and Edcomm, Edcomm alleged that Dr. Eagle’s LinkedIn account belonged to it and that shehad misappropriated it. It asserted that, under Dr. Eagle’s management, Edcomm’s employees wererequired to create LinkedIn accounts; utilize a special Edcomm form to maintain the look and feel of theaccounts; include links to Edcomm’s website; and utilize Edcomm’s template for replying to individuals
  • 2. through LinkedIn. As such, Edcomm maintained, Dr. Eagle’s LinkedIn account (and, indeed, the LinkedInaccounts of all Edcomm employees) belonged to Edcomm and that Dr. Eagle was liable for refusing toreturn her account to Edcomm. The Edcomm case is now in discovery.LessonsRather than engaging in expensive discovery and litigation, there are steps a company should take toprotect its interests. A company hiring or designating a person to manage its social media or onlinepresence should make it clear, in writing, that the company owns the social media. In Ardis Health, LLCv. Nankivell, the court granted a company’s motion for injunctive relief and ordered a former employeeto return login, password and other social media access information. According to the court’s opinion,Ms. Nankivell was hired as a video and social media producer and, in that capacity, maintained websites,blogs, social media pages, passwords, and login information for related companies. At the start of heremployment, she signed an agreement which provided that all work created or developed by her “shallbe the sole and exclusive property of [the plaintiff], in whatever stage of development or completion.”The same agreement required her to return all confidential information upon request. Notwithstandingthe foregoing, when she was terminated, Ms. Nankivell refused to return certain confidentialinformation to the companies, meaning that they were unable to access several of their online accountsand websites, to their detriment. The court held that, based on the agreement, “it is uncontested thatplaintiffs own the rights to the Access Information. Defendant’s unauthorized retention of theinformation may therefore form the basis of a claim of conversion.” For this reason, it held that Ms.Nankivell must turn over the login, password and other access information.HR needs to get involved in developing social media presence and policies. Don’t leave it to marketing,IT and legal departments alone. Implement a policy in the employee handbook that clearly states that all social media accounts such as Linkedin, Facebook, Twitter (and the contacts, friends, fans and followers that go with them) that are used by employees for work-related purposes are owned by the company and that, upon an employee’s separation from the company, the employee must return them immediately. Designate specific employees to work on behalf of the employer in building your social media presence rather than leaving it open to any employee to post. The designated employees must be informed in writing about the ownership of the accounts, passwords, followers, contacts and fans. Update your policy as your social media presence changes. Social media and the internet are evolving rapidly and new social sites emerge weekly. At the minimum you need to review your policies in this area annually and ideally everytime your marketing department launches a new social presence.Rajiv Burman

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