There is no denying that social media can be a valuable tool for businesses. However, employee use of social media can also create legal issues—issues that, if left unaddressed, can lead to lawsuits when the employment relationship comes to an end.
Consider the following questions: If an employee uses his social media account (Linkedin, Facebook, Twitter) in connection with his work, what happens to the account when he ceases to work for the company? Does the company retain ownership of the account along with all of its contacts, or is the employee entitled to keep it? What if the employee uses social media contacts obtained through work with a prior employer to help a new employer, or to start a competing business?
The above questions help to illustrate some of the legal grey areas that have arisen due to the growing prevalence of social media in the business world. Canadian courts have yet to provide any answers, and accordingly, there is currently a gap in our law regarding the ownership of employee-created social media content. However, several highly publicized lawsuits in the United Kingdom and United States have drawn attention to the legal issues that employers and employees may encounter…
Hays v. Ions (UK)[i]
Mark Ions was encouraged by his employer, Hays Specialist Recruitment, to use his LinkedIn account for business purposes. He later used the account to approach some of Hays’ clients for his own rival agency before resigning from Hays three weeks later. Hays sued, and while no decision has been made thus far regarding ownership of the account or its contacts, the court required Mr. Ions to disclose various items to Hays, including his LinkedIn contacts, all e-emails sent or received by his LinkedIn account, and all documents evidencing use of the LinkedIn contacts and any business obtained from them.
PhoneDog v. Kravitz (US)[ii]
Noah Kravitz, an employee of the website PhoneDog, had a Twitter account with over 17,000 followers. He then left PhoneDog for one of its competitors and took the account with him, changing its name from @PhoneDog_Noah to @noahkravitz. PhoneDog sued, claiming that Mr. Kravitz’s behaviour was tantamount to stealing a client list. In the end, Mr. Kravitz maintained custody of the Twitter account, but because the case was settled under confidential terms, what it cost him to keep it remains unknown.
Eagle v. Morgan (US)[iii]
Linda Eagle co-founded a company called Edcomm and maintained a LinkedIn account largely because of her work. When another company purchased Edcomm and fired Ms. Eagle, they obtained her password from her assistant and took over the account, replacing her name and photograph with those of her successor. Ms. Eagle’s federal claim that Edcomm’s actions were in violation of the American Computer Fraud and Abuse Act has been dismissed by the federal court, but the case continues to proceed under state law claims.
It is clear from the lawsuits summarized above that numerous legal problems can arise when social media is used for business purposes. While it remains to be seen how Canadian courts will rule on these issues, both employers and employees can take precautions to protect themselves in the event of a dispute. If you are concerned with the ownership of social media content in the context of an employment relationship, we recommend the following:
If you are an employee seeking to maintain ownership of your own social media content…
- Make sure you understand any policies your company may have regarding the ownership of social media content created during the course of your employment
- If your company does not have any such policies, consider working out an agreement with your employer beforehand
- Create and maintain social media content on your own time using computer equipment not owned by your company
- Choose usernames and URLs that are unrelated to your company, and register using personal contact information (e.g. a personal e-mail address as opposed to a work e-mail address)
If you are an employer seeking to establish ownership of employee-created social media content…
- Direct your employees to create and maintain social media accounts specifically for your business
- Have employees sign clear, written policies and agreements specifying that these accounts, including all contacts and passwords, are company property and must be relinquished at the end of the employment relationship
- Require that social media content be created and maintained on company computers and on company time
- Ensure that usernames and URLs include references to your company name
While the law in this area remains unclear in Canada, there is certainly one lesson to be learned from the cases summarized above—don’t wait until the end of the employment relationship to figure out who owns employee-created social media content. Consider the words of Noah Kravitz, who noted following the conclusion of the PhoneDog lawsuit that he wished he and his employer had foreseen the need to negotiate specific contract terms beforehand: “Good contracts and specific work agreements are important, and the responsibility for constructing them lies with both parties. Work it out ahead of time so you can focus on doing good work together—that’s the most important thing.”
[i] Hays Specialist Recruitment (Holdings) Ltd & Anor v Ions & Anor [2008] EWHC 745 (Ch) (16 April 2008).
[ii] PhoneDog v. Kravitz, No. C11-03474 MEJ, 2011 WL 5415612 (N.D. Cal. Nov. 8, 2011).
[iii] Eagle v. Morgan, Civ. No. 11-4303, 2011 WL 6739448 (E.D. Pa. Dec. 22, 2011).
Posted by D. Jared Brown and Lauren Findlay
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