How to Create Policies to Legally Protect Your Brand’s Social Media Accounts

Editor’s Note: This is the third part of a 4-part series on social media law: protecting the ownership of your social media accounts (for both employers and employees).

This week we’ve been exploring a 2011 case of an employer and former employee battling it out legally, over a Twitter account valued at $340,000. It’s a case that has only existed once to-date, but is still a high-risk scenario that can potentially affect you, if you aren’t careful.

So far, we’ve answered the following two questions in regards to this type of situation (click on each question to be taken to its answer):

1. Do companies have a legal right to do this? Under what circumstances does the company have the right to claim the account if it was always owned solely by the employee, even if it was at the brand’s request?
2. Under what circumstances is it just too bad for the company, meaning they have no say or rights in the matter?

Today, the fabulous Judith Delaney will take us a step further in understanding our legal rights in this matter by answering the third of four questions, which will be answered in two parts:

Answering question #3

Q: a) Does it require a signed policy/agreement at the opening of the account,
Q: b) and if so, what is legally allowed to be included within this policy/agreement?

Judith answers Q a): 

The obvious answer to the question is: employers should implement policies and proactively develop agreements specifically relating to the ownership of company social media accounts, but is it currently “required” by law or otherwise? No.

* Note: The plus side of the PhoneDog Vs. Kravitz case is that because of the media exposure and expansive interest in the case, according to research by law firm Proskauer, the number of employers who now have written specific policies about social media use at work has climbed to 69% in 2013 from 55% in 2012 (source: Cary Kletter, Phone Dog vs. Kravitz; Fortune Magazine)

For you, the employer:

• Accounts should be set up by the company’s management (using the company name in the handle or account name), the company should maintain the passwords and only give access to those who need it as part of their job duties and to direct the content.
• The employer must communicate to the employee in writing that it owns the accounts and the content, and that contributing content as part of the employee’s job duties is owned by the company. This can be done by incorporating specific language relating to an employee’s duties and how the ownership of social media accounts and contacts will be handled, so as to protect them just like any valuable company asset. (Such specific agreements could be an offer letter, a non-disclosure agreement, a non-compete agreement or one or more of the foregoing.)

For you, the employee:

• You need to make sure that you understand, from the beginning of your employment, the company’s ownership policy of social media accounts and discuss ownership of any personal social media accounts and following (fans, followers, etc) that you already have, if you have agreed to use your personal social media accounts and following to promote the company’s business. Then, any changes/ additions/ deletions could be addressed by an amendment to the applicable agreement between the company and yourself, as agreed between both parties.

Judith answers Q b): 

When two parties enter into an agreement for which there is a bargained-for exchange, generally, such agreement is legally binding upon the parties as to their obligations and rights respectively, unless the text of the terms and conditions are so convoluted to be misunderstood or onerous or impossible for the reasonable person to understand. Unless such a policy is associated with a legally binding agreement, the policy is just that – a policy.

Notwithstanding the foregoing, following are a couple examples of suggested points of understanding to be considered for such an agreement related to such a policy (courtesy of Anthony Zeller, employment litigation attorney; VanVleck, Turner & Zeller, LLP) :

• Clear understanding of who owns an employee’s social media accounts that will be used for business purposes (or license to use the accounts) and any restrictive terms of use of the employee’s social media accounts during employment.
• Ownership and use of the company’s social media accounts. Who retains the right to change the passwords? Who retains the right to edit and approve content? What is the process to approve content prior to publishing?
• What control, if any, the company will have after the termination of the employment relationship over the employee’s or the company’s social media accounts. Is there a time frame after employment that the employee cannot use his or her own social media accounts for competitive business uses?

To sum up: The above are some guidelines to use, as both an employer and as the employee, when creating policies and agreements that detail the rightful ownership of social media accounts, their followers and their use. Remember that, to this date, there are no official laws in-place on the subject, but, as people sign a prenup before marriage, the safest precaution you can take, as both a company and an employee, is to protect your assets from the start, under amicable conditions.

Last but not least, in the fourth and final post of this series, we evaluate whether or not these guidelines and laws, outlined within this social media law series, apply on a state-by-state, federal and/or international basis. 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.