Many employees are using social networking sites such as LinkedIn, Twitter, Facebook and even YouTube to maintain and manage business and personal contacts in the course of their employment.
Not much consideration has been given to questions such as who owns a Twitter account Twitter followers or LinkedIn contacts when an Employee decides to leave their employment?
There is nothing novel about ownership disputes over various kinds of intellectual property between Employers and Employees. As discussed elsewhere, ownership disputes often arise between Employers and Employees and other persons over copyright, trademark, Intellectual property rights in websites between website developers and customers, ownership of domain names between registrants and trademark owners, and ownership of patents.
Frequently ownership disputes over traditional intellectual property in an employment relationship are resolved through a written agreeement setting out clearly ownership rights in existing intellectual property and improvements over intellectual property.
What happens to valuable commercial assets which don’t qualify as intellectual property because they don’t fit into the category of intellectual property. Customer and client lists, business processes, formulas, ldistributors and trading partners all fall into the category of trade secrets and/or confidential information, the ownership of which can sometimes be more valuable than traditional intellectual property rights.
On LinkedIn people build networks of other users on the site who often leverage each other’s contact lists to establish and maintain new business contacts. In Hays Specialist Recruitment (Holdings) Ltd. v. Ions, (2008) EWHC 745 a UK court classifiedLinkedIn Contacts as falling into the category of trade secrets.
The issue of ownership of a Twitter account has arisen in case law, most recently in the US decision in Maremont v Susan Fredman Design Group. The case concerns post-employment ownership over social media, in this case a Twitter account.
These are issues which you could expect to see litigated more frequently, unless these issues are resolved, as they are in relation to ownership of intellectual property and confidential information/trade secrets, by way of written agreement by the parties prior to a dispute arising.
In an earlier hearing in March of this year in the Maremont case, the Court considered heard the Plaintiff’s complaints regarding her Twitter and Facebook accounts.
The Court held that a company’s unauthorised use of an employee’s personal Facebook and Twitter pages, for the purpose of posting marketing messages, may lead to liability under the Illinois Right to Publicity Act and the Lanham Act for false endorsement.
The Plaintiff sued claiming her ex-Employer had misused her personal social media accounts. This case was an unusual situation, as the the Employer continued to post on the Employee’s personal social media accounts whilst the Plaintiff Employee was in hospital convalescing after a very serious car accident.
Merely the fact that the Employer felt the need to do so indicates how much signficance Employers attach to social media accounts in the marketing of their business and how valuable Twitter and Facebook presences are to them. It appears that Employers hold the belief that they have ownership entitlements over such personal accounts, without having an appreciation that they may legally be owned by employees.
The case raises a question over who actually owns a company’s Facebook fans and Twitter followers during and after an the time an Employee leaves their employment.
There is a degree of ambiguity in ownership over social media accounts as a proprietary right when considering how to allocate ownership over them, especially in situations where there are vastly differing expectations between Employers and Employees.
As an employee, you may want to take your social media accounts and contacts with you when you leave. However tension and litigation may ensue when an employer wants to continue to take advantage of the goodwill built up in the account.
The solution to this dilemna for all concerned is to discuss the issue prior to cementing an employment relationship and implementing a corporate policy on ownership of social media.
A similar issue had arisen in the US case of PhoneDog v. Kravitzwnership over ownership rights to a social media account. The Plaintiff Phonedog, a mobile news and reviews website, used a variety of social media tools to promote its services such as YouTube, Twitter and Facebook.
The defendant worked as a reviewer and videoblogger for the site, maintaining a Twitter account, submitting video and Twitter content, as a result of which he accumulated 17,000 Twitter followers. He changed both the account and handle when asked to relinquish it The company sued him for financial loss of $340,000.
His Employer sued him for intentional interference with prospective economic advantage, negligent interference with prospective economic advantage and conversion. The court didn’t dismiss the conversion claim, saying Phonedog alleged it had the right to possession over the account, but there isn’t much legal analysis by the Court over the conversion claim.
An interesting aspect of the Phonedog case is that the Plaintiff Employer had its own Twitter account, whereas this account was set up specifically for Kravitz, so it would be a stretch to argue that he had appropriated the company’s account.
In the Maremont case, the plaintiff was a high profile interior design and social media employee for a firm in Chicago and developed a work related blog hosted on her employer’s website. She was appointed as Director of Marketing, Public Relations, and E-commerce and her annual compensation included a bonus contingent upon the company’s gross sales exceeding certain levels, therefore her social media efforts assisted her in promoting sales to qualify her for receiving those bonuses. As part of a social media marketing campaign for her Employer, she created a blog titled ‘Designer Diaries: Tales From The Interior’.
Whilst employed with the Design Group, she became well known within the Chicago design circles, developing a personal Twitter following of approximately 1,250 people and frequently posted to both her personal Facebook page and Twitter accounts.
Although she conceded establishing a Twitter account using her Employer’s computer at their office, it wasn’t contested that her personal Twitter and Facebook accounts weren’t for her Employer’s benefit. She used Facebook and Twitter posts to promote the company by linking them to the corporate blog and website.
She entered and stored all information to access her accounts, including her password for her personal Twitter and Facebook accounts, on the company server, however put them in a folder which was locked and which she didn’t give authority to anyone for the purposes of accessing her accounts.
She produced evidence of 17 Tweets which had been posted during her absence, linked to the company blog written by another Employee, explaining her accident. One entry also announced that during her absence there would be a guest blogger who would assume her role at the company and tweets.
She said she changed her passwords and suffered, having suffered distress upon realising her employer had sent out tweets and Facebook posts from her personal Twitter and Facebook accounts promoting her employer’s business. Each Post and Tweet displayed Maremont’s name and image giving followers the appearance that she was the author.
After a few aborted attempts to return to work part time she ended up gaining employment with a public relations firm, bringing action against her past Employer.
The court held in March 2011 that her complaints, as filed, were sufficient to pursue causes of action for false endorsement and breaches of her right to publicity, but dismissed her common law misappropriation of likeness claim.
The court also dismissed her claim for unreasonable intrusion upon seclusion, which she claimed resulted in a breach of her privacy. The court said that in order to prevail on this claim, she had to show the Employer intruded into a matter that was private and which the plaintiff attempted to keep private.
However, in doing so, the Court appeared to overlook the fact that when the company accessed her accounts, they could have also accessed private facts stored in the account, such as private messages, DMs, photos, and other information in the Twitter/Facebook accounts that were not public. The court’s analysis demonstrates a lack of appreciation that Twitter or Facebook accounts can contain other information than what’s actually publicly “posted” through the account. The issue of workplace privacy has been one which has been the subject of much contention and law reform enquiries.
To succeed on her false endorsement claims she would have to show that she has commercialized her name or likeness. False endorsement, sometimes referred to as ‘false light’ in the United States can be proven to have occurred when a person’s identity is connected with a product or service in a manner that consumers are likely to be misled about a person’s sponsorship or approval of a product and/or service.
This kind of claim is founded on an unauthorised use of a person’s identity, a type of false association claim, as it involves the misuse of a trademark. To succeed a person doesn’t have to prove they are in direct competition with their Employer, merely that they had an intention to commercialise an interest in their identity.
Maremont did have a commercial interest in the court’s view as a professional interior designer in the Chicago design community, even though as an employee she clearly posted on behalf of her Employer. Although promoting her Employer’s interests on Facebook and Twitter was part of her marketing strategy, whilst employed she created a personal following on Twitter and Facebook for her own economic benefit. She also claimed she did so as if she left her employment she intended to use her Twitter and Facebook account followers to promote another Employer’s interests.
The Court said she could bring a Lanham Act claim as she had a protected, commercial interest in her name and identity within the Chicago design community. She argued her Employer used her likeness to promote their design business without her written consent in violation of Illinois’ Right to Publicity Act, claiming her likeness was tied to her online activities and she authored frequent posts and tweets to her personal accounts along with the material for the Defendants’ “Designer Diaries” blog.
As her image appeared on each personal Post and Tweet, it unmistakably distinguished her likeness. The elements for an Illinois Right to Publicity Act claim include: (1) an appropriation of one’s nameor likeness; (2) without written consent; and (3) for another’s commercial benefit. The tort is to protect the ‘interest of the individual in the exclusive use of his own identity, in sofar as it is represented by his name or likeness. It is permissible if a person does not pass himself off as the plaintiff or otherwise seek to obtain for himself the values or benefits of the plaintiff’s name by misappropriating it.
However in order to win on this claim, the Court said that she had to show she was damaged and the Court has granted her time to gather expert evidence to testify on the question of damages. It may be a difficult task to show her affiliation with the company as a result of the social media posts had a negative financial effect on her, as it is unlikely that they would cause another company to not want to hire her or it dimished her earning capacity in some way.
These types of cases provide a salutary reminder that these kinds of issues over ownership of social media should be addressed within contracts and social media policies.
Like most other issues regarding social media, how a given employer deals with such ownership issues would depend a lot on the Employer, the Employee’s position and bargaining power, including the industry and culture of a workplace.
Ideally, within any social media policy, a company should designate official employer accounts to differentiate them from personal social media accounts, in addition to specifying when an employee’s Twitter/Facebook posts are their own as opposed to the Employers.
Whilst many businesses sanction employees for having personal work-related social media accounts some actively encourage it. Businesses need to therefore give careful consideration to the most appropriate approach to take given the nature of their business in consultation with employees active in social media.