Many smart companies are using social media to generate business outcomes. But who owns these accounts when a person moves on?
1. If the face of your brand builds a Twitter following does it stay or go with them?
2. If you employ someone because of their online Klout what right do you have to their previous relationships?
3. If staff use professional networks like LinkedIn in place of contact management systems to generate leads, who owns that data?
4. Who owns your LinkedIn account?
5. If a former employee with a ‘restraint of trade’ clause updates their LinkedIn profile is this ‘soliciting’ or just the ‘new grapevine’?
6. On the other hand, if you do not update your LinkedIn profile when you move on are you falsely representing yourself as a current employee?
These are just some of the questions that businesses are grappling with in relation to social media and there are no easy answers. ..
While existing law covers the online space, there have been too few cases to provide clarity on its application (precedent) and not surprisingly, considerable disagreement over judgments.
For example, last year the online US news company PhoneDog settled a lawsuit against its former editor Noah Kravitz who built 17,000 Twitter followers under @PhoneDog_Noah but changed the account to @noahkravitz and kept the followers when he left.
PhoneDog sought $340,000 damages for alleged misappropriation over eight months; while Kravitz said PhoneDog had asked him to use his Twitter account to post ads for the company.
Perhaps disappointingly from the perspective of law the case was settled out of court, but the incident generated enormous debate about who owns these valuable relationships.
It was also the first time that a dollar value had been placed on a follower (US$2.50) within a legal context.
As far as Twitter is concerned, writing for the Australian School of BusinessWharton professor of legal studies Kevin Werbach argues that because Twitter is free and people follow or unfollow others at whim, neither a company nor an individual can ‘own’ followers.
He distinguishes Twitter followers from a company’s customer list because, he says, it is not used internally to generate business.
I am not sure this is always the case. Many companies actively use social media to generate sales. The bigger challenge is measuring conversion from social media engagement to sales as a contribution to ROI. (For example, a recent Forrester report suggests that around 1% of sales can be directly traced back to social media. But that search, which is generated by producing and sharing content including via social media networks, accounts for nearly 40% of eCommerce transactions.)
Jamie White, social media law expert at Pod Legal, agrees that a Twitter account is not capable of being owned but suggests that is because, like a domain name registrant, a Twitter user is granted a revocable licence to use the platform for its intended purpose.
However, because the issue has not been resolved in law, White suggests that employers clearly set out their expectations around ownership in employment contracts and policies.
“This takes away what is often an inevitable dispute around the treatment of social media accounts and contacts when a contract expires or ends,” he said.
In the absence of specific terms, lawyers are looking to existing law to draw analogies. But even where this occurs, because these are global platforms it is difficult to extrapolate findings from one jurisdiction to the other.