Social media is becoming an increasingly valuable asset for businesses, with the vast majority of blue chip companies now having a strong presence across Twitter, LinkedIn and other online communities. When utilised well, social media can be a highly effective way of interacting with customers, providing customer support and promoting a brand. For start-up businesses in particular, perhaps reluctant to commit to a high advertising budget, social media is now a key tool for reaching a client base and increasing brand awareness.
What a business posts, the frequency of its social media activity and its number of followers can influence brand perception. It is therefore important for businesses to protect the time and money invested into their social media accounts.
This article explores some of the common questions surrounding ownership of social media content and connections, and the steps a business can take to protect its valuable networks. Dealing with these thorny issues early on can help to minimise the risk of disputes further down the line.
Where an employee has devoted a significant amount of time to professional social media activity, or where they have been actively encouraged to develop personal professional accounts, the ownership position is likely to be more contentious.
The default legal position is that where an employee generates copyright material in the course of employment, the employer will be the first owner of these rights. This may be applicable to social media content on accounts associated with the business, and sometimes on an individual’s personal account. The value of such content to an employer will inevitably vary depending on the particular Tweet/post and the nature of the business.
The position is slightly more complicated when it comes to ownership of connections and followers, a situation that came under the spotlight in 2012 when Boris Johnson moved all 250,000 of his Twitter followers from @MayorofLondon to @BorisJohnson.
Where a company’s “offline” customer lists are imported onto social networks, this information can arguably be protected by confidentiality. The difficulty with this is that the public visibility of such information can undermine the argument that it is confidential, so ensuring that connection settings are set to private will help mitigate these risks.
The issues surrounding the protection of social media connections have been addressed by the courts on a few occasions. In Hays Specialist Recruitment (Holdings) Ltd and Another v. Ions, a consultant copied information from a confidential database concerning a business’s clients and connected with two of them on his LinkedIn account after leaving the business. The court took the view that those connections would belong to the employer. Similarly, in Whitmar Publications Limited v. Gamage, interim relief was granted to prevent ex-employees from continuing to use a company’s LinkedIn account to promote a competing business. Again, the fact that the LinkedIn groups were set up for the benefit of the previous employer was an indication that the network in the groups should be considered to be the property of the employer.
In some cases, a client list uploaded onto a social network could also be protected by database rights if there has been a substantial investment in “obtaining, presenting or verifying the contents of the database”. This can be difficult to demonstrate, particularly where connections have been instigated by other users or automatically suggested by the social networking website. It will also be difficult to protect pre-existing connections or those connections that arise through an employee’s personal use.
Despite the challenges outlined above, there are steps that can be taken by businesses to safeguard their interests:
Clear communication is critical; if an employee’s role will involve developing the company’s social media presence, or if they are actively encouraged to develop their own personal professional accounts, clear communication and contractual arrangements at the outset will help to pre-empt ownership disputes further down the line. This is particularly relevant to new businesses that embrace social media use to generate awareness of their venture.
Implementing a coherent and robust social media policy will help to preserve a company’s rights to social media accounts. Ideally, such policies would include a clear definition of the company’s contacts and identify how these differ from an individual’s legitimate personal connections. One approach is to prohibit employees from adding business contacts made during the course of their employment to their personal accounts, or require disclosure of any business contacts upon their departure from the business.
Ensuring that a business keeps control of accounts is also important. This might involve including provisions in the social media policy that prevent employees from changing account names and require passwords to be surrendered upon their departure. The ability to enforce this strategy is likely to depend on whether genuine confidential information is at stake.
Requiring any employment-related social media content to be posted under the company’s branded accounts is another important way of maintaining ownership and control. Similarly, requiring employees to change their account settings to make connections private will also help preserve the confidentiality of such information.
4. Restrictive covenants
It is advisable to review the scope of restrictive covenants contained in a company’s standard form employment contracts. For example, non-solicitation clauses can help to prevent departing employees from exploiting their professional contacts for a period of time, and could specifically refer to those connections made on social media.
It is important for businesses to bear in mind that any restrictive covenant must not go further than necessary to protect legitimate business interests in order to ensure a maximum chance of enforceability.
Social media usage is an area that is manifestly difficult for businesses to police and protect. The line between professional and personal use can often be quite blurred, particularly for those that work in marketing industries. For start-up businesses, thinking carefully about policies can help minimise issues further down the line, particularly where social media is likely to play an integral role in the business’s marketing strategy.
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