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Who owns the content produced by a Social Media account used for Business Marketing and Branding?

Who owns the content produced by a Social Media account used for Business Marketing and Branding?

By Pedram Tabibi

Social media continues to be a steady and increasing part of everyday life and now business as well.  As social media use grows, the content generated by social media is reaching enormous amounts.  An astounding amount of information and content is generated every 60 seconds on the Internet; including over 1,500 blog posts, 695,000 Facebook status updates, and over 98,000 Tweets.   Imagine for a moment, however, that the content you create and the friends and connections you make on Facebook, Twitter and LinkedIn are not yours, but the property of your employer.  Sound far-fetched?  It should not, as recent lawsuits are grappling with these very issues; namely whether the employer or employees owns the content produced by a social media account used for business marketing and branding.

The recent social media lawsuits involve facts not unlike those we encounter in everyday business.  One lawsuit involves a company named PhoneDog and the Twitter account of its former employee Noah Kravitz.  Another lawsuit involves the LinkedIn account of its former principal, Dr. Linda Eagle.  In the PhoneDog action, Noah Kravitz was a PhoneDog employee from 2006 to 2010.  In this capacity, Kravitz used various social media platforms while employed with PhoneDog, including the Twitter handle, @Phonedog_Noah.  Kravitz eventually amassed over 17,000 Twitter followers.  When he left PhoneDog, Kravitz claims he was told he could keep the Twitter account, which he renamed @NoahKravitz, in exchange for occasionally posting on the company’s behalf.  However, PhoneDog filed a lawsuit against Kravitz in 2011, claiming the Twitter account was akin to a customer list.  PhoneDog seeks, among other things, $2.50 per month per Twitter follower over eight months, for a total of $340,000.  The lawsuit is ongoing.

Take a step back for a moment and contemplate the above scenario.  You work at a company and use your social media accounts to send out information about your employer, perhaps to connect to potential employees or to help build your company’s brand.  At some point, you decide to leave the company (in Noah Kravitz’s case, to a competitor), and your employer then sues you over your social media account.  The flip side also applies; imagine hiring an employee, and allowing them to Tweet, post Facebook updates, or use LinkedIn to promote your company and its services.  Before long, your employee’s social media accounts contain a large amount of client and company information.  Then one day, your employee leaves the company and takes your social media “client lists” with him or her.  You would not be too pleased if the valuable content generated on your company’s time and dime, are now no longer in your possession, and to make matter worse, in a competitor’s hands.

The burning question, then, is how to avoid these scenarios from arising in the first place.  Of course, while each individual scenario will be different and individuals should consult with an attorney regarding the facts of their individual situations, there are some common strategies and measures a company should consider employing.

One excellent way to address social media issues, including those that may arise between employer and employee, is through social media policies or guidelines.  A social media policy could address issues such as: (1) who can create a social media account used for a company’s marketing and branding; (2) who has access to the social media account passwords; (3) who may add content to the account or “comment” on the account, such as in response to Twitter Tweets or LinkedIn postings; and (4) procedures to relinquishing the account at the end of the employment period.

Another method for addressing social media employment issues is through carefully designed employee non-compete and non-solicitation agreements.  Such agreements may address how an employee is or is not allowed to use social media following his or her employment term and may prohibit an employee from using social media platforms in manner that competes with the employer.

As a social media lawyer at Meltzer Lippe, I have had the opportunity to speak at length to various companies, executives and small businesses about this topic.  While many companies use social media guidelines, including, for example, one executive who told me her company does not allow employees to friend or connect with the company’s clients on social media, many companies do not currently have a social media policy – around 45% by one estimate.  Given that at least 75% of companies use social media in their business model, this practice of no social media policies must change, otherwise companies leave open the possibility of liability or headaches down the line.  The recent Twitter and LinkedIn lawsuits should serve as a wake up call in this regard.

This is not to say that social media is a bad thing.  Social media can clearly be a valuable asset for a company, by improving marketing, branding and connection to customers, among many other things.  However, companies and individuals must explore both sides of the equation, properly utilizing the business benefits of social media while properly addressing the legal pitfalls of social media business use, in order to best benefit from social media.

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8 comments

  1. Please consider another scenario:
    You are an experienced recruiter, with a substantial network built over years, through several companies. An employer hires you BECAUSE of your network, so they don’t have to wait for results. In this case what would you do if the recruiter left your business in the future?

    I think there’s a bigger point there which people are missing…. Depending on the nature of the service or product or employer the social media account is related to, the ” customer” or client is a difficult to measure asset. It is still not easy to determine ROI from social media avenues like Twitter.

    LinkedIn is a touchy one for sure.

  2. William Cash Parks

    Good article makes sence!!!

  3. Seems pretty simple to me. Employees sign acknowledging that they have access to company property that is private information. When the employee leaves, passwords change, not unlike taking the keys back. If employees are not in a public relations, customer service or sales position in the company, I would not allow social media on their computer as there is no need for it.

  4. Claire is right. Just as an employee develops something while working for a company, they do not own the product, the company does.

  5. David, above, said it all in the phrase “… good communication will prevent …”.

    It seems straight forward to me in the Kravitz case, when he left he should have gotten in writing that his employer said he could keep his account. He apparently did not do this and since he was being paid while working for them between 2006 and 2010 whatever he did while on company time belongs to the company.

    In fact I would say that anything an employee does on company time belongs to the company, which is a god reason not to dabble in social media of your own while on the company dollar.

  6. Employees need to understand that content and followers created and developed on the company dime will likely revert back to the employer upon job separation. Thanks for the infographic post.

  7. Who would have thought 5 years ago that we would be discussing these things? There are 3 parties in this situation. Employers need to to clarify their social media policies. Employees need to understand that content and followers created and developed on the company dime will likely revert back to the employer upon job separation. The 3rd Party, the social media companies, perhaps should consider creating different types of accounts for businesses, organizations and individuals (the way Facebook has done). In the end, good communication will prevent most of these problems.

  8. I see both sides to the argument. In today’s social media driven world employer policies’ need to catch up to prevent costly confusion down the line.

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