You own your Facebook, LinkedIn, and Twitter accounts right? After all, it’s your pictures, your name, and your connections. However, recent lawsuits show that ownership of social media accounts is not as clear-cut as commonly thought. Organizations increasingly argue they have a proprietary interest not only in social media accounts associated with their businesses, but also the social media accounts of employees and independent contractors. This is particularly problematic for PR practitioners whose social media presence is not only a tool for clients, but part of their personal and professional brand.
Interestingly, lawsuits about social media ownership do not involve the content placed on the accounts. Rather these lawsuits hinge on the value of the followers, friends, or connections associated with the account. Organizations argue these connections constitute a virtual Rolodex of valuable client lists. Because of this, employers argue social media accounts constitute trade secrets, a form of intellectual property, that are protected under most state laws. Social media connections are arguably trade secrets because they are valuable pieces of information that contain complex and detailed information about customers and clients. If an employee can take these connections with them to a new job or startup they have a competitive advantage to steal valuable clients from their old employer. After all, employers argue the only reason employees develop these contacts is because of their job.
Employees, specifically those involved in PR, marketing, and advertising, argue that taking away these accounts is equivalent to stripping them of their professional connections that are an essential aspect to any communications practice. Client contacts are gained through relationship development that has more to do with the individual employee rather than their organization. Employees also argue that placing a value on these social media accounts is an imprecise measure given the transient and fickle nature of social media connections.
Despite these arguments by employees, U.S. federal courts have determined that in some cases, social media accounts are an organization’s trade secrets therefore making these accounts their property. Trade secret law is a unique form of intellectual property law since it protects secret, important, and valuable information potentially forever. Unlike other forms of intellectual property such as copyrights, trademarks, or patents, trade secrets are governed under state laws. Currently 46 states have essentially identical trade secret laws making trade secret litigation virtually uniform in the United States. The strength of trade secrets is they can potentially last forever, require no formal registration, and only require that the information only be valuable and kept secret by an organization. This is why some businesses elect to use trade secret law to protect their valuable intellectual property.
In lawsuits over social media ownership, trade secret status depends on whether the connections are valuable and been kept secret. In addition, social media ownership also hinges upon the nature of the social media account, how it was used, and when it was created. One common aspect of all of these cases is that nonexistent or vague social media policies led to confusion over the use, ownership, and regulation of social media. Examining these cases show that there are four ways organizations and practitioners can protect themselves from potential lawsuits over social media ownership.
- Establish a social media policy and have employees sign the policy when they begin work. This policy should detail ownership and use of personal and professional social media accounts. Policies should also be written and signed by current employees who may have been hired before a policy was in place.
- Do not allow employees to use personal social media accounts for official business. In recent cases the use of personal social media accounts, namely Twitter and LinkedIn, have cause a blurring between professional company owned accounts and personal private accounts. By keeping these accounts separate, ownership interests are more easily defined.
- Require employees to use professional social media accounts during core working hours. While it is true social media promotions often require 24 hour attention, having employees use social media for work and at work points to organizational ownership of the account.
- Do not publish client lists online. While providing examples of representative clients online is probably fine, when an organization publishes a full list of clients they reduce the secretive nature of their client list. When suing an employee for a social media account under trade secret laws, having an online client list viewable to anyone takes away the social media connections’ trade secret status.
For PR practitioners:
- Establish up-front who owns what social media account. When a practitioner is working in-house this may be established by the social media policy. However, when working freelance or for an agency with multiple accounts this ownership question may not be answered by a policy. Establishing boundaries and expectations up-front in a written contract reduces the risk of litigation over ownership.
- Create and maintain personal social media accounts, specifically LinkedIn, and use them only for personal reasons. This may require practitioners to set-up personal and professional accounts. While this may not be optimal for unity of personal branding it provides a demarcation between professional and private accounts.
- Do not do promotions for clients or organizations on personal social media accounts. Using personal social media accounts for promotional or sales purposes, specifically creating promotional events or groups creates an argument that the account is the property of the organization. While it is tempting to use personal accounts that already have built-in followers, it blurs the lines between professional and personal creating the potential for ownership disputes.
- When selling a PR practice or leaving a job you should establish what social media accounts you are taking with you. Merely changing the name or affiliation of an account does not eliminate an organization’s ownership interest. Remember what’s at stake is the connections, followers, and friends on the account.
While none of these suggestions are full-proof protection against a lawsuit they can reduce the risk of litigation and provide evidence of ownership if a lawsuit is filed. We now live in an era where social media is not only an essential part of communications strategy, but a means of communication that has an actual dollar value. With the recognition that followers equal money, litigation over social media account ownership is likely to increase. For practitioners, agencies, and organizations the only remedy is to take proactive steps to reduce the risk of ownership confusion.
Cayce Myers, Ph.D., J.D., LL.M., serves as research editor for IPR in the area of public relations law. He is an Assistant Professor at Virginia Tech’s Department of Communication.