A recent district court case should remind companies of the importance of setting forth clear social media guidelines with their employees, which, among other things, make clear that webpages – such as Facebook brand pages – are owned by the company. In the case, the plaintiff, Stacey Mattocks, ran an un-official Facebook Fan Page (the “Page”) focused on a television show called the “Game.” After the Black Entertainment Television network (“BET”) acquired syndication rights to televise several seasons of the show, it hired Mattocks on a part-time basis after learning about her Page. Her employment duties included managing the Page, although other BET employees were granted permission to post to the Page. BET displayed its trademarks and logos on the Page, encouraged its viewers to “like” the Page, and provided Mattocks with exclusive content – including video links and photographs to post on the Page. Mattocks and BET eventually entered into a Letter Agreement that granted BET full access to the Page, including the right to update content at any time. In the same Agreement, BET agreed that it would not change Mattocks’ administrative rights.

During Mattocks’ employment, the number of Page “likes” grew from 2 million to 6 million. After a dispute arose between the two parties during negotiations for BET to employ Mattocks full-time, Mattocks demoted BET’s ability to access and post to the Page without her approval. Following its demotion, BET contacted Facebook and had Facebook “migrate” the likes from Mattocks’ Page to an official BET Fan Page for the “Game.” BET’s request was granted, as was a similar request it made to Twitter. Mattocks then filed suit, claiming breach of the Letter Agreement and asserting, among other claims, that BET tortiously interfered with her contractual relationships with Facebook and Twitter by having her accounts shut down.

Although the U.S. District Court for the Southern District of Florida granted summary judgment to BET – holding that Mattocks materially breached the Letter Agreement, finding that BET’s migration request was neither unauthorized nor wrongful, and rejecting Mattocks’ tortious interference claims – the case highlights the need for companies to plan ahead to protect their intellectual property assets.

Social media platforms do offer companies built-in protections. For example, Twitter provides “verified accounts” to establish the authenticity of certain brands and has a “trademark policy” that prevents users from deceiving others as to brand and business affiliations. Instagram’s Terms of Use prohibits users from violating, misappropriating, or infringing on the rights of any third party. And Facebook provides verified profiles/ Pages and prohibits users from misleading others into thinking their Page is an official Page of a brand. Despite these built-in protections, however, prudent employers should take certain proactive measures to assure their ownership rights:

  • Establish a social media policy that addresses the ownership of and use of social media accounts, provides notice to employees that such accounts are the property of the company, and complies with any applicable social media password protection laws
  • Provide proper risk management by specifically addressing in the social media policy the protection of trade secrets, intellectual property and other confidential information
  • Educate employees on the company’s social media guidelines and obtain express notice and consent for the policy, including through an initial acknowledgment of the policy, as well as periodic reminders
  • Assure that company-sponsored sites are established initially by the company within the course and scope of an individual’s employment, rather than permitting the use of a personal page initially created by an employee or other third party on personal time in the absence of a subsequent written agreement conferring ownership to the company
  • Set ground rules for the administration of official company-sponsored social media sites, making clear that their authority to administer such sites is only granted during employment and is revocable by the company at-will
  • Consider providing administrative rights to social media accounts to more than one employee
  • Avoid using employees’ names or personal information in company account names
  • Update employment agreements, confidentiality agreements and restrictive covenant agreements to address ownership of social media accounts, and otherwise reflect digital risks and realities

Taking the time to address social media ownership concerns ahead of time when an account is first created will avoid headaches later, in the event that an employment relationship is severed in an other than amicable fashion.