Many individuals and organizations continue to struggle with the question of social media ownership, which involves the accounts themselves, individual and page profiles, platform content and posting activity. Most of the related laws and regulations were written long before today's social technologies were even created, let alone widespread, and there are few legal and business precedents to refer to. And even though there have been a number of legal cases over the years (e.g., Whitmar Publications Ltd v Gamage (UK), PhoneDog v. Kravitz (US), Eagle v. Edcomm (US), Maremont v. Susan Fredman Design Group, Ltd. (US)), their outcomes only provide partial guidance at best. Attorneys may be able to provide some legal advice about how to manage the relative rights and responsibilities of employers and employees when it comes to social media “property” and activity, but their advice can often be one-sided and draconian, emphasizing the employer's rights rather than striving for a fair balance between employers and employees.
Although I am not an attorney, I have a strong interest in the legal issues related to social media and have been following and writing about them for years. I think it's important to help employers develop pragmatic approaches to managing the risks associated with social and digital technologies in a way that doesn't alienate employees and/or hurt their long-term organizational objectives. In that spirit, this post provides general and specific recommendations for employers regarding the question of social media ownership.
A good general rule to follow is that while an individual is employed by a specific organization, he/she is effectively an agent of that organization (click here to read about the law of agency). Therefore, the employer has a right to dictate certain things that relate to the individual’s employment and/or his/her activity. Those rights are not unlimited, of course: they must conform to existing laws and regulations (e.g., the National Labor Relations Act (NLRA), guidelines from FINRA), as well as employment policies and agreements. Once an individual’s employment ends, an employer’s rights generally only continue through the restrictive covenants included in certain employment contracts (e.g., non-compete agreements), as well as general laws such as defamation.
But legal considerations are only one aspect of risk management. Employers must also consider business and reputational risks. Here are a few recommendations along those lines:
Consider employee morale and the desire to be an “employer of choice.” The more one-sided and draconian an employer’s approach is to determining and communicating the relative rights and responsibilities of itself and employees, the more it is likely to alienate employees, reduce engagement, decrease loyalty, increase turnover, etc. Conversely, demonstrating consideration of the employee perspective can have a strong positive human capital management effect.
Take a long-term, relationship-oriented view rather than a short-term transactional view. Rather than viewing employee termination as the end of a relationship, it’s better to view it as a transition to a new relationship. An alum could become an employee again, or a key customer, a supplier, a business partner. He/she may serve as a great resource for candidate and client referrals or other valuable information/contacts. And at a minimum, he/she has the freedom to speak about his/her employment experiences, choosing to either promote or disparage the organization and its products/services.
Remember that rules can impact other stakeholders besides employees. Suppliers, clients, partners and other stakeholders form relationships not just with an organization, but with its representative employees. How departures of those employees are handled can impact those relationships. When they’re characterized by secrecy, punitive approaches and a lack of trust, they can damage an employer’s reputation, standing, and future business prospects.
Respect both employer and employee brands. We’re well past the era of “lifetime employment,” and most all individuals recognize that they must manage their own career and professional brand. Knowing there are no employment guarantees, employers must respect and support their employees’ rights and ability to pursue and find work in the future, even when they’re currently employed.
Using these considerations as a guiding force, employers should:
- Update/create relevant policies and guidelines. Employers need to review and update all of their policies to ensure they reflect Digital Era realities and provide proper risk management. Specific policies related to social media ownership include those that address trade secrets, intellectual property, confidentiality, etc. In addition, if the organization doesn’t have a social media policy and/or guidelines, it needs to create them, ensuring they comply with existing laws such as the NLRA.
- Update employment agreements. In addition to updating their policies, employers also need to update their non-compete, non-solicitation and other employment agreements to reflect digital realities, risks, and activities.
- Determine terms of ownership for specific organizational accounts on social media platforms. Ideally this would be done before an account is opened, but agreement should be reached on all accounts as soon as possible. I discuss specific stipulations in the next section.
Here are some specific recommendations on the “Big Three” social media platforms, plus a few general comments on blogging. As evidenced by the notes on blogging, there’s an underlying set of principles that can be applied to various platforms and an individual’s activity therein. Relying on those principles can help both individuals and employers determine where the lines should be drawn on other sites like GooglePlus, YouTube, Flickr, Tumblr, Quora, Pinterest, SlideShare, etc.
- Individual profiles: Each individual “owns” his/her own profile. While he/she is employed by a specific organization, however, the employer has a right to dictate what gets included in it, but those requirements should be limited to the individual’s current employment. For the sake of consistency and brand protection, employers should provide all employees with guidelines about how they should represent themselves, the organization, and their jobs, paying particular attention to the profiles of leaders and externally-facing employees (e.g., business development folks, recruiters).
- Contact information: LinkedIn allows people to have multiple email addresses, and they specifically recommend that everyone include both a personal and a professional address. I further suggest that people make their personal address their primary address, and select personal/professional addresses for specific activities, as appropriate (e.g., selecting where to receive group messages).
- Contacts: Employers can argue that any contacts made during an individual’s employment are the “property” of the employer, but that’s not a very pragmatic position to take. A more practical approach may be to recognize that it’s joint property. Allow employees to connect with people via LinkedIn at will and keep their connections post-employment. At the same time, employers should have an internal system for capturing relevant information about prospects, clients, candidates, suppliers, partners, and whatever other relationships may be covered by employee agreements. Then, if/when the employment relationship ends, there’s no need to divide up the assets. (NOTE: maintaining individual connections does not nullify employment agreements; former employees can still be legally bound to restrictive covenants).
- Groups: This is another area in which a balance must be struck. Employers may provide rules/guidelines about what groups an individual can join, but only to the extent that they relate to his/her employment/role. For example, a plastics manufacturer can require certain employees to join a group for the Society of the Plastics Industry, but it should have no say in whether an employee joins a professional or alumni group. If an individual starts a group on behalf of an organization, additional managers should be added to allow for smooth transition of the management of the group if/when the initial owner leaves.
- Comments: Social media policies and guidelines should address whether and how employees can comment on a variety of social media sites, including LinkedIn. Generally speaking, when individuals share individual updates and/or make comments in groups, they should clarify whether they’re speaking on behalf of their employer and (more importantly) when their views are their own.
- Recommendations and Endorsements: Many employers have “no recommendations” policies that probably need to be updated to include LinkedIn (and other platforms). In the absence of such a policy, employers should still create guidelines about what is/is not acceptable for current employees.
- Organizational accounts: Many social media advocates recommend personalizing Twitter engagement by having individuals tweet/interact on behalf of organizations rather than having anonymous corporate handles. A good balance is to have relevant individuals create handles that reflect both their individual and corporate identities. Employers should also make clear that the account and its followers are all the property of the organization, not the individual. If/when the employment relationship ends, the Twitter handle can easily be changed to reflect a new identity. This can get tricky, however, when individuals start to gain a following based on their individual personalities (see this story, for example, about Rick Sanchez and CNN), which may require developing an alternative approach to dissolution/transfer that reflects the co-branding.
- Personal accounts: Generally speaking, it’s probably best if individuals dissociate themselves from their employer in their Twitter profile. At a minimum, they should include a disclaimer that the views they express are their own. The employer’s social media policies and guidelines should also specify whether and how the individual can refer to the organization and its brands in their tweets.
- Personal profiles: Because individuals primarily use Facebook for personal rather than professional purposes, employers have little say over what gets included in their profile, except perhaps how they refer to their employment.
- Privacy settings: Employers can’t dictate an individual’s privacy settings, but it’s in both their and their employees’ best interests to educate individuals how they work and provide general guidance.
- Activity: Irrespective of an individual’s privacy settings, the employer’s social media policies and guidelines should specify whether and how the individual can refer to/represent the organization and its brands in their status updates, comments, photos, videos, etc. This guidance, however, must comply with the NLRA and reflect other employee rights and protections (e.g., whistleblower laws).
- Connections: Employers should update their policies to extend them to digital spaces where necessary and appropriate. For example, if an organization has a fraternization policy, that policy should be modified to include Facebook. In the absence of a policy, employers should at least consider providing education and guidance for connections, similar to what they would offer with respect to privacy settings.
- Pages and groups: It’s a quirk (at best) of Facebook that all pages and groups be created by and attached to an individual profile. Although it is a violation of Facebook’s terms of service for an individual to create more than one profile (another quirk), I think it may be possible for an organization to create a “corporate” identity/profile and use that identity to establish its pages and/or groups. Even if an official presence has been created by an individual, there should be multiple administrators so that ownership of a page can be maintained if/when one of them leaves.
- Organizational blogs: The considerations here are similar to what I described earlier for Twitter accounts.
- Personal blogs: The considerations here are similar to what I described earlier for Twitter accounts.
- Commenting: The considerations here are similar to what I described earlier for LinkedIn commenting.
Thoughts from Others - and You?
These recommendations reflect my personal experiences with social media, the extensive reading I’ve done on the subject, my interactions with and observations of both individuals and employers, and my general expertise in related areas (e.g., employment law, human capital management). That said, this is still uncharted territory, and there are few definitive answers. When I first published this piece, I encouraged others to share their points of view, as well as other relevant resources. Here are a couple of my favorite responses:
Hi Courtney, Great post, thanks for taking the time to prepare such a comprehensive overview. I have just one thought to add: complicated and overbearing rules can discourage employees from participating in social media on behalf of their employer. I tend to work with companies with professional employees who are public facing but not necessarily executives, sales, or recruiting. If complying with company policy is too onerous, they are likely to reduce social media activity or simply leave the company out of their social media activity, which is a significant lost opportunity for their employer. - Bruce
Shawn E. Tuma
Courtney, this is a really nice post that provides loads of substantive information -- great job! As a technology attorney, I am most often faced with the question of "what can I do" which, I believe, is less appropriate than the question I choose to answer: "what should I do" -- and the two are often quite different. My preferred philosophy in dealing with social media issues is that it requires a balancing of interests that takes into account the legal rights and responsibilities of all parties but also factors in the human intangibles because oftentimes adhering strictly to what is legally permissible simply isn't in the best business interest of the client. Thanks for the great article!
And although they may be a bit dated, the following posts also provide some great insights:
I would love for folks to share more points of view, as well as other relevant resources and examples that illustrate what best (and worst) practices look like. I especially welcome contributions from people outside the US, since my knowledge is generally limited to this legal environment. Asking and answering questions is encouraged as well. Thanks!
Original post on the Denovati SMART Blog.