Businesses are increasingly relying on social media to establish and grow their products and/or services. While the advantages of using social media are vast (i.e., it is inexpensive, comes with a virtually global audience, and has frequent and immediate contact potential), it does come with risks. Among the dangers is failing to address who owns a social media account. This is very much still an emerging issue in the law, but some existing case law and best practices can provide guidance as to how these ownership cases develop and how they can be avoided.
Right to access
In Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. March 12, 2013), the federal district court for the Eastern District of Pennsylvania became one of the first courts to address the issue of ownership of employer social media accounts. The dispute in Eagle concerned whether an employer or an employee owned a LinkedIn account.
While serving as president of Edcomm, Inc., the plaintiff, Dr. Linda Eagle, created a LinkedIn account to promote the company and to communicate with personal and professional contacts. Edcomm encouraged employees to create LinkedIn accounts connected to their company email address.
Upon terminating Dr. Eagle from the company, EdComm immediately accessed her LinkedIn account and changed the password to prevent her from accessing it. Edcomm then hired another individual to succeed Dr. Eagle; and the company updated the name, password and photo on the LinkedIn account to reflect that of the new president.
Dr. Eagle sued Edcomm for federal claims under the Computer Fraud and Abuse Act and the Lanham Act, and under state law for a variety of tort claims. The case made it to trial, and the court decided that while Dr. Eagle proved three claims against Edcomm (unauthorized use of name, invasion of privacy by misappropriation of identity, and misappropriation of identity), she was not entitled to any monetary damages because she failed to prove any damages with reasonable certainty. In its ruling, the court found that although Edcomm encouraged the use and creation of LinkedIn accounts, the company had no clear ownership policies in place. The case serves as a reminder that employers need to be proactive and develop social media policies and ownership agreements at the outset – before the need actually arises.
Ownership of the account name
In PhoneDog v. Kravitz, 2011 WL 5415612 (N.D. Cal. Nov. 8, 2011), the defendant was an employee of PhoneDog – a mobile news and review resource company. The company provided the defendant with a company Twitter handle, @PhoneDog_Noah, for which he used to post opinions and reviews of mobile products and services. The account amassed 17,000 followers during the defendant’s time at the company. When the defendant decided to leave PhoneDog, the employer requested the return of the Twitter account. The defendant refused and instead changed the Twitter handle to @noahkravitz, thus retaining the thousands of followers.
There was not a written policy or contract governing the account. The employer sued based on several theories of liability, including: misappropriation of trade secrets, conversion, and intentional interference with prospective economic advantage. PhoneDog also asserted an “intangible property interest” in the account’s list of followers, comparable to a business customer list, according to PhoneDog. The parties subsequently settled the dispute, so we do not know how the court would have ruled on the ownership issues that the case presented – but the employer’s claims did survive the defendant’s motion to dismiss, indicating that there was at least some credibility to the claims. Again, a policy governing the ownership of social media could have gone a long way in preventing this litigation.
An Ounce of Prevention
In Ardis Health, LLC v. Nankivelli, 2011 WL 4965172 (S.D.N.Y. oct. 19, 2011), Ardis hired Ashleigh Nankivell as a “video and social media producer” to develop videos, websites, blogs and social media pages showcasing the company’s products. Nankivell’s contract stipulated that she would return all confidential information to her employer upon termination and that all work created or developed by Nankivell “shall be the sole and exclusive property” of the company. After Nankivell was fired, she refused, despite the contract, to return certain confidential information to the company. As a result, access to several of online accounts and websites became impossible. The court concluded that it was “uncontested that plaintiffs own the rights to [the login information for the social media accounts]”. The company’s preliminary injunction was granted and the Nankivell was required to return the login information.
The first step in creating a social media ownership policy is considering the different components of an account. There are generally four “ownership” aspects: (1) the right to access and control, which will typically include possessing a password (2) ownership of the account name (3) the account content, and (4) ownership of the connections the account has to other social media users (i.e., Facebook friends, Twitter followers, or LinkedIn connections).
Striking a balance between fairly protecting the business’s interest and not overstepping an employee’s rights in their own activities is the goal. In some instances, a business may want an employee to undertake personal promotion of the company in order to benefit the employer. Asserting too broad of an ownership interest could even discourage recruitment and retention in some industries, such as news media.
In creating a social media ownership policy, it is worthwhile to consider if the provisions should also be inserted in non-competition or non-solicitation agreements for some high-level employees. For example, a non-competition agreement may address what forms of targeted communication (if any) could occur with former clients via LinkedIn.
Social media ownership cases will continue to percolate through the courts, as more and more companies find the intrinsic value associated with these accounts. To avoid a debate – or worse, litigation – employers should focus on how they will retain ownership of their accounts in the wake of employees coming and going.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or firstname.lastname@example.org.
This article is intended as a summary of state and federal law and does not constitute legal advice.