Who (Really) Owns Your Social Media Accounts

T: @dionnelew W: dionnekasianlew.com

Many smart companies are using social media to generate business outcomes. But who owns these

accounts when a person moves on?

SIX QUESTIONS

ONE –

If the face of your brand builds a Twitter following does it stay or go with them?

TWO –

If you employ someone because of their online Klout what right do you have to their previous

relationships?

THREE –

If staff use professional networks like LinkedIn in place of contact management systems to generate leads,

who owns that data?

FOUR –

Who owns your LinkedIn account?

FIVE –

If a former employee with a ‘restraint of trade’ clause updates their LinkedIn profile is this

‘soliciting’ or just the ‘new grapevine’?

SIX –

On the other hand, if you do not update your LinkedIn profile when you move on are you

falsely representing yourself as a current employee?

Questions. Questions.

And these are just some of the questions that businesses are grappling with in relation to social

media…

…and there are no easy answers.

Existing law covers the online space but …

… there have been too few cases to provide clarity on its application (precedent) & not surprisingly,

considerable disagreement over judgments.

FOR EXAMPLE -

Last year the online US news company PhoneDog settled a lawsuit against its former editor

Noah Kravitz who built 17,000 Twitter followers under @PhoneDog_Noah but changed the account to @noahkravitz and kept the followers when he left.

PhoneDog sought $340,000 damages for alleged misappropriation over eight months -

Kravitz said PhoneDog had asked him to use his Twitter account to post ads for the company.

Perhaps disappointingly from the perspective of law the case was settled out of court… (talking precedent not legal fees)

… but the incident generated enormous debate about who owns these valuable relationships.

It was also the first time that a dollar value had been placed on a follower within a legal context.

US$ 2.50

As far as Twitter is concerned….

…there are different views.

Wharton professor of legal studies Kevin Werbach argues that because Twitter is free and people follow or unfollow others at whim, neither a company nor an

individual can ‘own’ followers.

No one 'owns' their followers as a matter of property.” (Kevin Werbach)

He distinguishes Twitter followers from a company’s customer list because, he says, Twitter is not used

internally to generate business.

Is this always the case?

I am not sure it is.

Many companies actively use social media to generate sales.

The bigger challenge is measuring conversion from social media engagement to sales as a

contribution to ROI.

For example, a recent Forrester report suggests that around 1% of sales can be directly traced back to

social media. But that ‘search’ accounts for nearly 40% of eCommerce transactions.

Pod Legal believes a Twitter account is not capable of being owned because (like a domain name registrant) a

user is granted a revocable licence to use the platform for its intended purpose.

However, because the issue has not been resolved in law employers should clearly set out their

expectations around ownership in employment contracts & policies.

“PUT IT IN WRITING”.

This creates less ambiguity around social media accounts and contacts when a contract ends.

In the absence of specific terms, lawyers are looking to existing law to draw analogies.

But because these are global platforms it is difficult to extrapolate findings from one jurisdiction to the

other.

FOR EXAMPLE

In cases similar to PhoneDog, in the US a company could look at whether the employee used the company’s

trademark for personal gain.

However …

… this is not the case in Australia where there is no need to show ‘personal gain’ & a company can take

action if a person uses a trademark or a variation of it without authorisation.

I could use any other country as an example.

Trademarks may not be at the heart of your personal Twitter account.

Because Twitter is a personal network people tend to use photos rather than trademarks to increase

engagement.

(An assumption Mediabistro’s Lauren Dugan points out has not yet been validated.)

The issue of ownership varies depending on the platform and its user agreement.

In the US training company Edcomm tried to claim the LinkedIn account of former employee Linda Eagle by changing her password and replacing her information

with that of her successor when she left.

Eagles sued the company for theft and invasion of privacy

for hijacking her account.

The judge (Ronald Buckwalter)rejected the company’s claim and found Eagle was the

rightful owner.

But in his judgment he said the outcome might have been different if the company had paid for the account and required Eagle to build it on work time.

Whatever Buckwalter’s view, it would need to be tested since LinkedIn functions for many as an online

resume showing previous and current experience and a mixture of personal and professional contacts.

For others it’s an active business network, getting proven results.

To avoid dealing with ambiguity, some employers have taken a hard-line approach to social media, allowing

only work computers to be used for work-related social media.

#fail

It’s impractical and won’t work because it does not address the reality or the enormous impact of hyper-

connectivity on the nature of how we work.

It also ignores a key imperative -

BUSINESS SURVIVAL

Already eight people come online a second from around the world on mobile and social networks to connect,

collaborate and shop and Boston Consulting Global predicts social media will be worth $4.2 trillion to

the G20 economies by 2016.

What business can afford not to be there?

Today’s structures were established in an age where core hours and the boundary between personal and

professional were clearer cut.

Things have changed.

Many employees bring their own devices to work, providing opportunities for flexibility (and

challenges for IT).

We are ‘on’ 24-hours a day.

We check work emails at midnight or Facebook at 10am. This has a significant impact on the way that we

measure ‘time at work’.

And that’s just the way it is…

The ‘hardline’ is likely to spell the end of the line for many employees …

Studies show access tosocial media is more important than a pay increase

and can create high engagement and better productivity on the job; an argument for ‘right-use’

rather than ‘no-use’ policies.

These issues are harder to tackle right now because social media law is in its infancy.

In the future employers will need to deal with the complex digital footprints of new and existing

employees as a matter of course.

HOWEVER

Businesses can better manage the current environment by educating leaders and developing clear social media

policies and practices.

SEVEN THINGS

ONE

Ensure leaders are educated about the opportunities and risks of social media before deciding how to

manage it as a business.

TWO –

Know the laws of your land.

(In Australia the ACCC has said all businesses should monitor platforms & are responsible for comments made by others on their sites).

THREE –

Clearly state company policy on social media in employment contracts.

FOUR –

Develop clear social media policies and train against them to ensure they are enforceable.

Here’s a great example from the Department of Justice in Victoria.

FIVE –

Set up accounts that belong to the role rather than the individual where the company controls the password. For example, the Vatican and not the

individual pope manages @Pontifex.

SIX –

Ensure all divisions understand the environment (Yes I am looking at you here IT and legal).

It’s no good setting targets for people but barring them from engaging in networks that can help them to

deliver them.

SEVEN–

Work with social media strategists and lawyers who are visibly active on platforms.

Many professionals are appending ‘social media’ to their resumes with little (and even no) social media proof. Although measures like Klout and Kred are imperfect in the absence of alternatives, they provide a good start. Do your due diligence.

Clarity. Communication.

www.dionnekasianlew.com

T: @dionnelew E: dionne@dionnekasianlew.com