As more companies recognize the brand value created and sustained through social media, there is greater interest in preserving social media accounts for company use and retaining the follower, member or “friend” base that has been built over time.
Simultaneously, an increasing number of employees believe that the social media accounts are not company property but are the personal property of the employee—which may not be the company’s view.
Recent cases such as PhoneDog LLC v. Noah Kravitz, No. C 11-03474 MEJ (N.D. Cal. Nov. 8, 2011, settlement announced Dec. 3, 2012) illustrate the importance of a social media use policy and the need for a clear distinction at the company level as to who owns the social media used by the company. In PhoneDog, as noted by this blog, a former employee argued that the Twitter account he used to promote his former employer belonged to him personally, and not to the former company.
Responding to claims of conversion, the employee argued that the company did not establish an ownership right or the right to possess the Twitter account. The case has since settled, but not before generating widespread interest and concern regarding social media account ownership.
A company that wishes to retain ownership of a social media account created or used by employees or contractors exclusively for business purposes should consider adopting and enforcing a social media use policy. Through careful drafting, a social media use policy can preserve company rights and require employees to acknowledge ownership by the company. Key points to include in a social media use policy are the following:
- A notice and agreement that all social media accounts created or used on behalf of the company belong solely to the company;
- An agreement that the company retains sole ownership of all login information, passwords, and the associated content of those social media accounts;
- An agreement that the employee has no claim of ownership or interest in the content created and distributed through those social media accounts;
- An agreement that the employee is responsible for managing the account, but that all followers, friends and social connections associated with the social media account belong to the company;
- An agreement that the employees shall relinquish and not use social media accounts created or used on behalf of the company after termination of their employment.
While employers may lawfully include the above points in their social media use policy, they must be mindful of their employees’ NLRA Section 7 rights. If the company wishes to restrict an employee from commenting or posting on certain topics, the company should avoid broad restrictions that could limit the employees’ rights to discuss wages, workplace conditions, and company performance.
To avoid running afoul of the employees’ Section 7 rights, the policy should contain precise language and examples of prohibited behavior that fit within the context of the employer’s business. Employees must understand that any limitations on their use of social media are precisely drawn for legitimate business purposes rather than for the purpose of restricting their Section 7 rights. Instead of simply prohibiting the employee from posting about “any confidential company information” or “distasteful language,” the policy should specifically describe the information that the employee may not post—such as sales data, customer lists, sexual comments, and racial slurs.
Additionally, the policy should include a “savings clause.” A “savings clause” is a disclaimer that the policy is not intended to dissuade employees from engaging in activities protected by state or federal law. Such a disclaimer makes it less likely for an employee to understand that a policy prohibits Section 7 activity. The National Labor Relations Board broadly interprets social networking comments as protected, collective activity, therefore employers must exercise caution when drafting social media policies.
In addition, companies may be subject to various state laws relating to social media, ranging from requiring user credentials to actions taken in response to off-duty conduct.
Whether a company is expanding into social media marketing, revising existing computer and IT polices, or preparing to buy or sell a company, a well-drafted social media use policy can help protect the company against legal liability and reputational harm.