WHO OWNS WHAT YOU OR YOUR BUSINESS POSTS ON SOCIAL MEDIA?
While it would seem intuitive that ownership of a tweet or blog entry should remain with its author, the truth is this is an undefined area of law at this time. The court system has fallen woefully behind in its duty to define ownership of electronic media, especially in terms of social networking.
When a piece of text is created by an employee, ownership, at this moment, universally belongs to neither the creator nor company. The details of the ownership can only be discussed in terms of the contract signed by the employee at the time of hire. Several companies require their employees to sign documents that give complete and total control of all intellectual materials created by the individual during the term of employment to the company.
This means anything that is created by the individual, during work time OR ON PERSONAL TIME, belongs to the corporation. This would mean that any social media account that was created during the term of employment is, by legal rite, property of the company. While this is an extreme example, what it is meant to illustrate is that the ownership of social media accounts and individual posts fall under the jurisdiction of the corporate policy and individual contracts signed between corporations and employees. They do not fall under the standard intellectual property copyright laws. At least not yet.
According to Donna Ballman P.A., There are only a few cases that have delved into this murky new area of law. She states that these are:
- Amway Global v. Woodward: A blog post was evidence of violation of a non-solicitation agreement.
- Sasqua Group v. Courtney: The fact that the company?s customer info was available on LinkedIn and other public sources means it wasn?t a trade secret.
- TEK Systems, Inc. v. Hammernick: Complaint in lawsuit alleges employee violated a non-solicitation agreement when the employee added contract employees to LinkedIn profile.
These types of cases are usually the result of an employee leaving a current company and entering into direct competition with it. The main crux is that the information contained in the social networking system allows the former employee to have an unfair advantage over the former employer. While there is a limited amount of litigation on the subject, what is important to note is that with the idea of ownership up in the air, it is important to have a clearly defined electronic and social media policy in place at your business.
Crafting an Electronic and Social Media Policy
When you first start building a social media policy, take into account that the courts have not yet ruled on the line between what constitutes personal vs. business communication and that is what this policy should be about. By clearly defining when, where and how social interaction take place in the electronic realm, you can delineate ownership of materials.
You probably already have some policies in place to prevent employees from jumping ship and going into business for themselves and poaching clients from you. These could include such things as a non-compete agreement, a non solicitation agreement, intellectual property agreements and confidentiality clauses. These are a good place to start with your social media policy.
If your employees sign a non-compete or non solicit agreement and then actively start friending former customers on Facebook, following competing companies on Twitter and sending out LinkedIn requests to others in the same area, you have the right to send them a cease and desist order because it?s not the method of delivery that is objectionable but the message itself. There is relatively little that you have to do to tweak this policy unless it is to mention electronic communication specifically.
The main area of tweaking should happen in the intellectual property portion of your employment agreement. Ownership for all materials should be made explicit. This means the time and place of creation can be used as a way to define whether a piece of material is corporate property or that of the individual. Some larger corporations can afford to ask their employees to give up all rights to any intellectual property completed during their employment. Smaller businesses are much more likely to keep only confidential and competition-based properties covered by this policy. It is a good policy to advise employees that communications with clients should be done through corporate systems and not over social media networks and that you may consider any company contact that is added to a personal social media account as a breach of the non-compete, non-solicitation agreement.
Do You Own Your Business Social Communications?
This is a very important issue being decided in the courts right now. If you post something on Twitter, you can't access it after two weeks, but Twitter can sell it to any marketing firm they want for an indefinite period.
Facebook and some other social sites have specialized phrases in their terms of use that give them rights that you may not know you have given up. While Facebook claims it?will only use your information to promote other Facebook products to you and others,?its?terms of service state otherwise:
?You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.?
So, they can do whatever they want with your content as long as it doesn?t violate your privacy settings. They can also retain archival copies of anything you post even after you delete your account. And if you don?t like what they are doing, you can engage in arbitration.
This policy can be extremely damaging to a corporate Facebook page. If a disgruntled employee were to post trade secrets on the site and remove all public blocks, it would be out there forever with little recourse but to go through arbitration to have it removed, and then it would still be available to programmers and archivists employed by Facebook.
Ownership of media on other social networks like Pinterest is even murkier. With the doctrine of ?fair use? being heralded by anyone and everyone who posts a copyrighted image, the question of ownership twists on whether the promotion on a social site is a positive or negative influence on the product or company pictured. There are no lawsuits on this particular issue but when someone finally goes too far and creates a public or corporate outrage, we?ll then see who actually owns social media.??
Reference:
http://www.monsterthinking.com/2011/03/12/who-owns-my-social-media-contacts/
victoria beckham London 2012 rhythmic gymnastics Meteor Shower August 2012 jessie j jessie j David Boudia David Rakoff
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