Editor’s Note: This is the second part of a 4-part series on social media law: protecting the ownership of your social media accounts (for both employers and employees).
Yesterday we looked at a 2011 court case that involved an employer and employee battling over a Twitter account valued at $340,000; and we answered the question of whether or not this type of legal pursuit has grounds, whether for the employer or the employee. (To read yesterday’s post, click here.)
Today Judith Delaney, an attorney who specializes in social media law and global online privacy laws, answers the second of four questions I asked her, related to this type of social media risk:
Answering question #2
Q: Under what circumstances is it just too bad for the company, meaning they have no say or rights in the matter?
It was with great interest and expectation on the part of both employers and lawyers, that the outcome of the PhoneDog vs. Kravitz case would establish legal boundary lines between employees’ personal use of social media and employers’ claims to those channels of communication, thereby answering the question. But it was not to be. The lawsuit was resolved by a settlement agreement between the parties, the terms of which have not been made public, leaving both communities with no clear legal path to adjudicate the subject matter.
However, what we do know is that courts have long held client lists, cultivated over time on a company’s good reputation and using its resources as company property. The question is: does the same standard apply to Twitter followers, LinkedIn contacts and/or Facebook friends and fans – and how does one measure the value? (PhoneDog estimated $2.50 per follower per month, but it also claimed the social media accounts and contacts a trade secret for which most would agree translates into the value as priceless.) Again, because the case was settled between the parties, there was no precedent-setting opinion by the court in the PhoneDog vs. Kravitz case, as the opportunity to form an opinion by the court was never given.
In addition, courts may consider the following factors when determining ownership of social media accounts:
- Who set up the accounts and directed the content?
- Were the accounts set up before or during employment?
- Who had access to the accounts and passwords?
- Was the name or account associated with the employer’s name or brand?
To sum up: Due to the fact that this case, the only one of its kind for the time-being, was settled out of court, no judge has ever ruled on such a matter, therefore it is not possible to fully answer the above question – yet. However, as Judith points out, in order to protect your social accounts (whether you represent a brand or yourself as an employee) consider the above four important factors when setting up and assigning social media accounts that are to be used in representation of, or on behalf of the company or organization.
The question remains…
How can you better protect your social accounts? What types of policies and agreements can help you do so? What should you be sure to include within these policies and agreements, whether you’re the employer or an employee? Click here to find out!
Disclaimer: The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter thereof. Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or all of the content of this article.
Author of Crisis Ready: Building an Invincible Brand in an Uncertain World, Melissa Agnes is a leading authority on crisis preparedness, reputation management, and brand protection. Agnes is a coveted keynote speaker, commentator, and advisor to some of today’s leading organizations faced with the greatest risks. Learn more about Melissa and her work here.
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