With most companies turning to social media for business promotion, a company social media account is looking more and more like a company asset. Yet the lines of ownership are easily blurred. Consider these questions:
- What if one of your employees has garnered thousands of followers in your industry on his or her social media account? Do you have a right to any of those if the employee leaves? What details would sway the answer one way or the other?
- Does the answer change if that networking was done on company time or on a company device?
- Does the answer change if the networking was done as part of a job requirement?
- Does the answer change if the employee directly used the business’ name to create the network, rather than just his or her own name?
- Does the answer change if the account had belonged to the employee long before the employment began?
- What if an employee created the account, runs the account, and is the only one who knows the password? Even if the company should clearly own the account, it can be problematic to gain access to it if the employee is terminated.
- Separately, what if the business account was created under the employee’s personal account or is otherwise tied to it?
There’s no law on the books yet to address this issue specifically, but since social media is both directly and indirectly a money-making entity, it’s become a matter of legal concern quickly. Both sides have asserted ownership claims.
Do You Own Social Media Accounts?
One of the legal arguments posed by businesses to claim ownership of an employee’s social media account is the idea of trade secrets. If it can be shown that the social network contacts consist of clients and legitimately could be viewed as a company trade secret, then laws protecting trade secrets could offer some protection. The employee may have even signed a policy saying that company trade secrets cannot be divulged–which implies they cannot be used after the employment relationship ends. That’s a strong argument for the employer being able to take over social media contacts when an employee goes– even if they were personal accounts.
However, proving that a list of contacts—one that is probably publicly available to view and which the contacts are able to leave at any time—can be tough to justify as a “trade secret.” The argument is thin. So, what other arguments exist?
Some employers are claiming misappropriation of content, or claiming that employees (or former employees) are taking company property. From the other side, employees who lose their accounts have countered with claims of privacy invasion, as well as their own claims of misappropriation. Who’s right?
Here are just some of the considerations:
- Who created the account? When?
- How was the account used? Was it primarily for personal use or for business use?
- Do you have a social media policy that outlines the rules for these scenarios? What does it say?
- Do you allow your employees to list their employer and/or act on behalf of the company online? Do you allow employees to combine work and personal accounts?
- Are your employees allowed to use social media while at work?
- Do you require your employees to update personal social media accounts for the benefit of the organization?
- Do you keep your client lists secret otherwise? For example, do you list clients on your website or in publicly visible proposals?
It may be easier to prove ownership if the account was clearly created by and for the business and the network was grown for the company on company time. Conversely, if the account was a personal account and the employee didn’t use it as part of his or her work obligations, but had a network borne of industry contacts, that’s much more likely to be the employee’s property.
It’s tough to make any conclusions, however, because there are a lot of legal questions and no clear-cut answers yet. This question highlights the importance of having clear social media policies, including how personal accounts can be used (or not) for work and who retains the right to the accounts after the work relationship ends.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.