As social media becomes more essential for businesses, there will almost certainly be an increase in intellectual property disputes relating to social media account ownership and ownership of content. Lawsuits relating to Twitter followers, LinkedIn connections, or Facebook friends are not off limits. These intangible assets — social media IP assets — are becoming increasingly more valuable to businesses.
Eric Ball, partner at Fenwick & West and Jason M. Sarfati, an attorney at Joseph, Greenwald & Laake, P.A, sat down with IPWatchdog to discuss the need for employers to have social media policies and regulations in place.
According to Ball, companies should be clear about who owns a social media account and what an employee can do with the account. If it is a company account with the company’s brand, then the company should own the login information, and require the employee to update them on any changes to that information. On the other hand, if it is a personal account, the company should still have policies in place about what the employee can discuss about the company
“In some situations, especially for higher management, or customer facing employees, companies should consider restrictions on social media that extend beyond posts about the company,” he added, “One employee’s bad take can negatively impact the entire company.”
Also, there can be ownership issues with the content posted by the employee. Normally if you take a picture, you own the copyright in that picture. So, what if an employee takes a picture, and posts it on the corporate social media account? Ball told us that you will want an IP Invention and Assignment Agreement, and possibly a Work for Hire Agreement, to confirm that the company owns those photos.
Sarfati says that employers also need to recognize that social media is not just one thing – but rather a grouping of various websites that represent unique threats and opportunities to the employer’s bottom line. For instance, some websites, such as LinkedIn, should be promoted by employers to be accessed by their employees while at the office. Other sites, such as Facebook or Snapchat, have less obvious work-related applications.
“It is important for employers to spell out in a social media policy which websites can or should be accessed while at work, as the value of accessing these sites becomes a dangerous guessing game that individual employees are ill-equipped to handle,” he explained.
Similarly, it is important that employers notify their employees that their activity on a social media is likely to be monitored if it is taking place on a company computer. Generally, employees do not have a reasonable expectation of privacy in the private sector. Public sector employers on the other hand, must be careful to avoid monitoring an employees’ social media usage without, at minimum, notifying the employee first. According to Sarfati, failure to do so could constitute a “warrantless government search,” exposing the public employer to potential Fourth Amendment-related liability.
“The followers, connections, or friends of social media—especially for a company account—is like a customer list,” said Ball. “These are people seeking information from the company and may even make purchases from the company through posted links. A company wants to ensure that they continue to benefit from these connections.”
Today, social media accounts are often the primary line of communication between a company, their customers, and the greater market. Essentially, it is a direct line to your customers thinking, and a company’s direct voice. It’s the modern customer service, but instead of just a one-to-one communication, the entire market can see what your customers are thinking.
“Behind all of this customer interaction is the company’s most important personal asset. Their name, trademark or brand,” he said. “Control over how consumers view your brand is key to a company’s success. Companies must protect their brands and the goodwill they have built in it from employees misusing the accounts.”
In addition, social media posts are ripe for investigating your opposing parties, their witnesses, and even your own witnesses. According to Ball, you should review a witnesses’ social media posts before their testimony at trial or a deposition as you don’t want to be surprised about an off-handed comment. Being prepared can let you put the right context around the statement.
“You should also not just review what a user posts, but what they ‘like,’ who follows them and who they follow,” Ball explained. “You can learn a wealth of information through this investigation and use it to scope your litigation strategy. Social media accounts may also show confusion by customers in a trademark dispute, or reveal other harms.”
An employee who runs off with a company’s social media account can cause significant harm to the company. That employee could continue to use the account and post as if she is the company, causing confusion and distrust with the company’s customers. Or the employee could change the login and profile information to something more personal.
However, even if the employee does not take the social media account, the employees who run the accounts may know the company’s trade secrets and marketing strategy for how to best promote the company and interact with its customers, per Ball.
“Companies should protect their trade secrets and social media strategies with agreements like an IP Invention and Assignment Agreement, Confidentiality Agreements, and Releases,” he said.
And, if a key social media employee leaves the company, the company should consider monitoring how that employee is operating at their next employer. Companies review whether a key software engineer or sales employee has taken the company’s trade secrets to a new employer. With the importance of social media in the sales and branding of a company, they should also consider reviewing whether an employee is misappropriating their trade secrets with a new employer.
“If a third-party is injured due to an employee’s misuse of social media, it is possible that the employer can be subject to a lawsuit. While there are some legal defenses available to an employer, these defenses are only useful once a lawsuit has been initiated,” Sarfati said. “They do not prevent a lawsuit from being initiated in the first place.”
Overall, companies should draft, circulate, and train employees to follow a well-articulated social media policy. Best practices must include regular training of their employees so they are fully aware of what is contained within the social media policy and stakeholders should regularly re-visit the social media policy to ensure that it stays up to date.