It is increasingly reckless for companies to let employees conduct marketing and other business through social media (e.g., Facebook, Google+, LinkedIn, Twitter) using individual accounts held in their own names. Three recent cases demonstrate why:
- When a marketing employee was out on an extended medical leave, the employer accessed her Facebook and Twitter accounts to send marketing messages to clients and prospects. The employee sued the company under the “Computer Fraud and Abuse Act” for illegally accessing her personal accounts without permission. Maremount v. Susan Fredman Design Group.
- A former employee refused to turn over control of a Twitter account used in business. The court held that social media accounts may constitute a form of property that is protectable by the employer. Phonedog v. Kravitz.
- A departing employee and her former employer disagreed as to who “owned” a LinkedIn account. TEKsystems v. Horizontal Integration.
In addition to these cases, ownership and control of social media accounts is increasingly becoming an issue in mergers & acquisitions (M&A) due diligence and company valuation for high-tech businesses.
The legal solution: Make it clear that the company owns the social media accounts used to conduct business, and that company business should be done only with these company-owned accounts. Here are some ways to accomplish that:
- Include an additional clause on social media account ownership in the company’s legal agreements with its employees.
- Instruct employees to create new social media accounts for conducting business. The company should have a copy of the account login and password. If possible, the user profile should indicate that this is a company-owned account. The company account should be used for business-only and not any personal / family / social messaging.
- Adopt a policy in the employee handbook and provide a brief training to reinforce the messages above.