Most businesses understandably assume that they own their social media accounts. Why wouldn’t they? The accounts are generally listed in the business’ name, contain content approved by the business, and are maintained by the business’ employees. What tends to complicate matters, however, is the fact that social media may include overlapping ownership interests. For example, there may be a right over access and control of the account, while the name of the account may reflect another’s interest, and content published on the account may belong to yet another. Simple agreements stating a right or interest in the material on the account don’t always fully protect a business’ interest in complete ownership; in other words, the very social media accounts used to promote a business may not necessarily belong to it.
In recent years, ownership rights in social media have faced legal challenge. Employees who created, maintained, and produced content for social media accounts for their employers have won a number of cases disputing ownership rights to those accounts. In one particular case, an employee established the right to customer information gained through regular contact with them via social media on behalf of his employer. Upon leaving his company, he was free to take the contact information gathered from social media for thousands of his former employer’s customers. These risks can affect businesses with LinkedIn, Facebook, and a host of other types of social media accounts.
Proper agreements and policies will severally limit the reach of these types of case decisions. General agreements providing that all work created or developed by an employee remains the property of the employer are often held sufficient, however, employers are well advised not to rely on these types of general agreements. The more explicit the right is stated in the agreement, the better. To protect their rights and reduce the risk of litigation, businesses should create and register formal social media accounts under their name and provide multiple employees with access. This will help prevent individual claims of ownership or issues with accessing accounts should a dispute arise. Those employees with access should sign explicit agreements acknowledging that all rights relating to the social media accounts are and remain the exclusive property of the company.
Keep in mind that with ownership comes responsibility. Employers taking control over their social media increase their likelihood of liability for claims of defamation, copyright infringement, and similar misconduct. Policies should provide definitive procedures for social media use, as well as publication procedures. Whatever measures an employer takes, they should be careful not to intrude on the rights of individual workers to manage their own social media. Intruding too far could put an employer at legal risk under a variety of laws designed to protect employees. Nonetheless, the safest course for businesses is to stake claim to their social media accounts, and thoroughly police and manage interests in their social media property.
Christopher M. Mason is an attorney with Jennings, Strouss & Salmon, P.L.C. in Phoenix, Arizona. He counsels employers and management on all aspects of labor and employment law.