When your Twitter expert flies the coop, who owns that corporate account?
It is becoming increasingly common for issues to arise relating to employer vs. employee ownership of a social media account and the names, addresses, etc. that go along with it.
Business-related social media accounts typically contain useful information developed over the course of employment that can give a departing employee a competitive advantage over a former employer. Although there has been a lot of litigation about these issues, there are relatively few reported decisions.
One such decision can be found in CDM Media USA Inc. v. Simms, in which the court does not resolve issues relating to social media ownership but does highlight important steps a company can take to safeguard its information. The opinion is a response to a motion to dismiss filed by the defendant.
Background of the case
The plaintiff/ex-employer sued the defendant/former employee for breach of contract and misappropriation of trade secrets because that the defendant, while an employee of the plaintiff, was the contact person for a special LinkedIn group started by the plaintiff containing the plaintiff’s customers and potential customers.
After the defendant left the employ of the plaintiff, the plaintiff wanted the group contact switched over to a current employee of the plaintiff and requested that the defendant relinquish any names, addresses, conversations, etc.
The defendant refused to provide the information, apparently asserting that the company had no property rights in the information and that the defendant was not contractually required to transfer the information because the transfer of control of the LinkedIn group was not covered by the confidentiality provision in the defendant’s non-compete agreement.
The defendant also argued that the LinkedIn group account and pertinent communications do not fall under the Illinois Trade Secrets Act claim.
The judge split the baby on the motion to dismiss but essentially left all causes of action intact.
Both sides argued/acknowledged the fact that the ownership or control of the LinkedIn group account was not covered by the ex-employer/plaintiff in any agreement or policy it had relating to the defendant/ex-employee. If there had been some concrete proof of ownership, then the fact issues the judge described in his opinion would not exist.
At the very least, employers should have a social media policy, covering the ownership of and access to business-related social media accounts, as well as all information and communications associated with the accounts.
Employees should sign the policy, or at least a handbook acknowledgment if the policy is contained in a handbook. The policy should make clear that any posting on company social media is the property of the company, as are the accounts, names, etc. associated with the accounts.
Further, the policy should be clear that when an employee leaves, all account information and communications should be transferred to the company. It also should describe what, if any, information the company considers confidential. This way, when an employee leaves, the account information stays with the company.
Employers should also consider putting language regarding the ownership of social media accounts in the “Confidentiality” section of an employment agreement.
Proactive drafting of policies and agreements concerning social media accounts will let employees know where they stand when they leave the company and will give the company extra ammunition in the event of a fight over these increasingly valuable accounts.
Art Lambert is a partner in the Dallas office of the law firm Fisher & Phillips. On behalf of employer clients, he regularly counsels and litigates employment law matters including sexual harassment, discrimination charges, wrongful termination, and FLSA disputes. A version of this article first appeared on TLNT.