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.