Credit: Sharon Givoni
Social Media Policy in the Workplace – Who Owns an Account?
We all know that social media accounts can be a valuable asset to any business. In the early days when an account was linked to a person, ownership questions were far less contentious. However, those days are long gone, and the revenue stream which comes from social media connections means that the ownership of those accounts is a hot topic. Further, with the ever-changing landscape of technology and the internet, businesses and companies would be wise to have a social media policy in the workplace.
Take away tips
- Generally, the person who creates a social media page is the owner of it.
- This may be so even if the page was created during the course of employment.
- Social media policies need to include a provision relating to ownership of the page.
- If your clients wish to retain a social media page after an employee stops working for their company, there needs to be a clear agreement that states this before the content is created.
- All businesses should design and implement a well thought out social media policy to guide and govern employee conduct online.
- Businesses should be aware that all content posted online will take immediate effect and may cause irreparable harm.
Who owns a social media account?
Theoretically, the person who registers a social media account is its “owner”.
Although Facebook’s terms of service are a little vague on the issue, other services like Google expressly state that you own your account and may transfer ownership of it.
There is an interesting question about the deeper meaning of ownership in this context. It is unclear exactly what is “owned” per se. It would appear to be something like the ability to use and manipulate social media services as a specific identity. However, all user agreements across all social media platforms, reserve the rights of the service provider to unilaterally change and terminate services. This makes “ownership” rights somewhat limited.
Case Study – Ownership and LinkedIn
In the United States, there is legal precedent to support that social media pages are owned by their creator in Eagle v Morgan (Eagle v Morgan Case No. 11-4303, E.D.Pa).
The issue here specifically became about who owns a LinkedIn account.
In that case, Dr Eagle set up a company page for her employer on LinkedIn. When she left the company, her former employers demanded that she surrender her LinkedIn account.
The court found in favour of Dr Eagle owning her account, even though the LinkedIn page was created with the company’s encouragement and other company employees had assisted her in maintaining the account.
In a similar case, Phonedog Media v Noah Kravtiz (No. 11-03474 (N.D. Cal. Nov. 8, 2011), Mr Kravitz was hired to create a social media presence for Phonedog.
He amassed 17,000 followers but ultimately left the company, whereupon he took his social media account and the followers with him. The case was settled, but with Mr Kravitz retaining custody of the account.
These case studies demonstrate that such issues can be avoided through clear company policy and employment agreements.
Advising on social media policy with respect to copyright
These days, businesses need to accept the reality that most of their staff will use social media in some way on a daily basis, and their activities online can be attributed to the business directly. However, there are pros and cons of social media use in regard to workplace social media use. Being reckless when posting content online can result in liability. Companies, therefore, need to have procedures and protocols in place to ensure that their employees do the right thing.
Having a well laid out and clear social media policy in the workplace provides a legal basis for any disciplinary action such as termination for an employee’s wrongdoing. Further, in an employment context, it is necessary to have guidelines and employee training around the use of social media in order to safeguard the company’s public image — employees also learn what is expected of them in this context.
The case of Pearson v Linfox Australia Pty Ltd [2014] FWC 446 reinforced the importance of having a social media company policy in place. In the context of considering whether a worker’s dismissal by Linfox Australia Pty Ltd was unfair (the employee, Mr. Pearson had, among other things, refused to sign the Linfox’s social media policy), Commissioner Gregory of Fair Work Australia strongly approved of social media policies. He stated that:
“the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business
Notwithstanding Mr. Pearson’s adamant statement that “…Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech”, Commissioner Gregory took the view that:
“Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees …it is difficult to see how a social media policy designed to protect an employer’s reputation and security of the business could operate in an “at work” context only.”
It is clear that social media policies certainly have their place in the workforce. As to what such policies should cover, a company’s social media policy should emphasise their employee’s responsibilities online, and they should be wary not to breach copyright when posting content. In addition, employees should make it clear who they work for, and that their opinions are their own and not their employer’s. For example, this is evident in the Adidas Group Social Media Guidelines. Furthermore, employees should ensure the content they publish is accurate as well as being respectful to others that they interact with online.
Style guides rules around copyright and image sourcing, and practical examples of what not to do can also be useful. Some industries which are highly regulated, such as health, finance, and alcohol, may require additional rules.
What our firm can do to help
Sharon Givoni Consulting can help you in drafting social media policies or employment contracts for your business to ensure that it is clear who owns any social media content and accounts, and what type of content is appropriate.
We can also provide in-house training for your social media team or your employees in general about posting on social media.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.