Social Media and the LawAs with most legal issues concerning social media, the law has not yet caught up. As a result, there is widespread confusion about social media connections and content ownership.

Millions of us use Facebook, Twitter, LinkedIn and Instagram on a daily basis, both for personal use and in a business capacity. There are currently 2.078 billion active social media accounts.*

Successful businesses use social channels to build up a database of customers, interact with clients and strengthen working relationships. But what happens when an employee leaves the company – who do the contacts belong to?

Social media has come on leaps and bounds from just a few savvy individuals tweeting away in their spare time and sharing albums on Facebook. It’s safe to say that social media is going to go nowhere fast, with Twitter buying out Periscope earlier this year, a new live streaming app. Businesses all around the world are adopting social media strategies to help target audiences more effectively, expand their reach and garner instant feedback from customers’ perspectives.

Connections and content ownerships has recently been the subject of legal debate in the U.S. and UK. In 2013, the LinkedIn Eagle v. Morgan case hit the U.S. news. Linda Eagle, employed by Edcomm was encouraged to build her contacts for business development purposes. When her employment was later terminated, the LinkedIn password was changed, the profile picture was altered and all credentials were passed over to the account holder, Sandi Morgan, the new CEO.

Eagle sued Edcomm and the court found her in favour of her claims – invasion of privacy, misappropriation of identity and unauthorised use of name in violation. The U.S. court also found that Eagle’s LinkedIn account belonged to her, and not Edcomm. It also stressed that Edcomm should in future, establish specific policies regarding employee LinkedIn use.

This case was followed by a U.K. high court case, Whitmar Publications Limited v. Gamage. Whitmar pursued an injunction against ex-employers who held onto the company’s LinkedIn group contacts, one of whom used the contacts to promote the launch of a rival business. In this instance, the court went in favour of the employer, saying this was a misappropriation of confidential information.

So who owns what? The law states that general contact details in the public domain do not constitute ‘confidential information,’ but private contact details gained during employment is a different matter. With regards to the legal ownership of social media contacts, it’s still a grey area. It’s even more complicated when there is a mix of personal and private contacts on one account.

LinkedIn and Twitter’s User Agreements state that connections belong to the account holder, therefore it’s wise to draw up a company social media policy so that expectations are clearly communicated.

I recommend the following steps for employers:

  • Ensure a social media policy is set in place and effectively communicated to all members of staff.
  • Ensure that access to the account is retained at all times.
  • Ensure all log-in details and passwords are relinquished at the end of employment.

Commenting on social media policy, Darrell Stuart-Smith of Dorset and Somerset law firm Humphries Kirk commented: “The law is struggling to keep up with the explosion of social media in the business development field. As a society we are keen to preserve the rights of individuals. The Data Protection legislation and decisions of the courts demonstrate this. However, the principle of ‘what you create within the scope of employment belongs to your employer’ is well established and the laws relating to copyright and other intellectual property rights already reflect this.”

He added: “I believe clarity in this area will come as the body of decided cases builds up, but for the moment businesses should address this through clear and fair social media policies applicable to those who either work for or supply services to a business. These policies should be supported by appropriate provisions in the relevant contractual dealings with employees, freelancers and consultants.”

And he concluded: “Taking control of such interaction or at least requiring individuals to observe certain rules should help a business to retain or take ownership of an account or at least the details of the contacts to an account. It will also help protect the business from being associated with or even considered responsible for rash, inappropriate or incorrect comments by individuals.”

From these comments, it’s plain to see that even those without a mainstream media presence or thousands of followers can be held liable to a defamation claim. Everyone runs the risk of being personally held to account for his/her online conduct, irrespective of whether or not they intended to defame.

If you have any questions regarding social media ownership, please contact Alice via [email protected].

*Jan 2015, wearesocial.net   

By Alice Rook