Who owns an employee’s social media account?

The New York Times published a story on December 25th of this year  titled: “A Dispute Over Who Owns a Twitter Account Goes to Court” raising questions around the ownership of a Twitter account that was opened by an individual who included the name of the company he was working for in his account name and posted to the Twitter account during business hours. The NYTimes story posed the question: Can a company cash in on and claim ownership of an employee’s social media account, and if so, what does that mean for workers who are increasingly posting to Twitter, Facebook and Google Plus during work hours?

The story revolves around a lawsuit filed in July of 2011 by the company Phonedog.com.  The defendant, Mr. Kravitz, a writer, began posting to his Twitter account under the name “Phonedog_Noah” and over time collected 17,000 followers. In October 2010, Mr. Kravitz quit his job at Phonedog.com telling him that he could keep his Twitter account in exchange for tweeting on their behalf occasionally and Mr. Kravitz agreed.

Mr. Kravitz changed the name of the account to “NoahKravitz” keeping all the followers to the original account and began posting.

The question the New York Times posed is an interesting one but I think another question that should be asked is; what should an employee do to ensure there is no legal claim by their employer to “their” social media presence?

First, the employee should inquire within their employer as to any social media policies that exist. Most of the employer social media policies I have seen go to great pains describing what employees can and can’t post about the company and its business to social media sites. Corporate content such as upcoming product releases, sales data, and company rumors are the most popular types of restricted content highlighted. Based on this case, additional policy elements should include not including the organization’s name in the employee’s social media handle as well as not accessing or interacting with the employee’s social media accounts during work hours and from infrastructure owned by the organization.

If the organization doesn’t have a published social media use policy, then the employee should follow common sense and:

  1. Not post about your employers business especially confidential content
  2. Not post organization or staff rumors
  3. Never include the organization’s name in the social media handle (remember, corporate brands are valuable and most companies will aggressively defend them
  4. And never access social media accounts while on “company time” and from company infrastructure

Like the case mention above, if the organization asks its employees to post comments about the organization, employees should get the request in writing first acknowledging the organization will not claim ownership of the employee’s social media account is the employee does what is requested and also describing the types of comments the organization would like the employee to post. The employee will then have to decide if they want to use their social media account for organization business.

The same holds true for creating a social media account which includes the organization’s name as in the case mentioned above: Phonedog_Noah. In many cases creating a social media account with the employers name may be considered part of the employment agreement and could be considered an organization’s asset. The employee should always ask if that is the case and if the employer doesn’t claim ownership at the start, the employee should get a statement in writing stating the employer has no claims on the social media account.

A social media presence has become an integral part of organization marketing and all parties involved need to understand up front what the expectations are and who owns the asset.

Discovery of Information on Personal Facebook Profile

From the E-Discovery Law Review Blog:

A Pennsylvania court recently decided that information posted by a party on their personal Facebook page is discoverable.  Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) arose out of a chain-reaction automobile accident in which the plaintiffs, who were riding a motorcycle, were hit by a minivan that was hit by the defendant. Plaintiffs claimed serious and permanent physical and mental injuries, pain, and suffering as a result of the accident.

During the deposition of one of the plaintiffs, defense counsel discovered that the  plaintiff/deponent had a Facebook profile that she regularly accessed.  The defendant then accessed Plaintiff’s public profile and saw posts that contradicted her claims of serious injury.

The entire story can be read here:

Huge French Company Cuts off Nose to Spite Face

Susanna Kim of ABC published an article on November 29th describing how a French company has decided to implement a “Zero Email” policy, a policy banning employees from sending internal emails.

The CEO of Atos, Thierry Breton, (a French information technology company!) has said that only 10 percent of the average 200 emails employees receive per day are useful and 18 percent are spam.  Because of this statistic, he hopes the company can eradicate all internal emails in the next 18 months forcing the company’s 74,000 employees to communicate with each other via instant messaging and other Facebook style interfaces.

This reminds me of the story about an HR VP who was so tired of employees calling her with questions and problems she stopped answering her phone. She had 30 whole minutes of peace… until employees figured out where her office was.

Why not stop all internal phone calls? It would seem to me that internal phone calls would have the same “waste” statistic.  How about this… program your corporate phone system to not allow any calls from one internal number to another and instruct employees that to contact internal employees, they must use Skype. That should solve the problem, right?

Email has become a wildly successful world-wide business productivity tool. To force thousands of employees to abandon it for other types of communications technology doesn’t seem to address the problem. Won’t only 10 percent of employee’s communications using the new communications solutions be useful as well. Is there something magical about the new technology that won’t allow employees to send wasteful communications?

The other problem that arises with this particular strategy is the problem of litigation holds and eDiscovery. Email systems are well known and technology exists to enable organizations to handle email in a legally defensible manner. It seems to me an organizations risk of insufficient eDiscovery and spoliation will rise with a switch to a new communications technology.

The problem is not the technology… its employee’s use of that technology. If 70-90 percent of emails employees send internally is junk, then train the employees on proper etiquette and use policies around the use of email. Train employees to not “reply all” or “BCC” on every email. Audit employee use of the email system and punish those that misuse it.

Running away from one of the most useful business tools ever seems like a gigantic over-reaction.