Social-media ownership still a gray area
By MATT CHANDLER
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Have you checked your Facebook account, sent a tweet or LinkedIn since you arrived at the office today? If the answer is no, you are in the minority of Americans.
According to the tech site mashable.com, American companies lose an estimated $650 billion annually to employees surfing social media instead of working.
But what about the billions that companies earn from social media? LinkedIn has become the equivalency of the Rolodex, Twitter a way to communicate business offerings with thousands of people instantly, and even Facebook is a major player in the corporate landscape. This has left employers struggling to strike a balance between lost revenue due to wasted time and the virtual money to be made via social media.
It also has led to a looming question yet to be answered conclusively by the courts: Who owns your social media account, you or your boss? It's a seemingly simple question - a personal account is yours and a business account is theirs, right? The problem, of course, is that millions of workers have blended the two.
With many companies late to join the party of social media, savvy employees were already using their LinkedIn page and Twitter to conduct business while keeping up with friends and family. Unfortunately, an account executive who amasses 8,000 followers on a personal Twitter page and then decides to leave the company and go to a competitor now has something worth fighting for.
More and more, companies are making the legal argument that a Twitter page is the modern equivalency of a client list, thus it is company property. Each name can be seen as a cash cow and one both sides are willing to fight to keep.
Nicole Schuman is owner of SchuShine Communications, a social media marketing and communications company in Buffalo. She said most of the problems with social-media ownership can be avoided by outlining clear boundaries via company policies.
"When an employee signs on to work for your company, guidelines and rules for social media need to be in place and those rules need to carry over to their own pages," she said. "It needs to be laid out that they can't be badmouthing the company, even on their personal pages."
It might seem like common sense, but Schuman said many companies are playing catch-up in the world of social media and policies that go with it.
"Employers need to review with their marketing team and the employees what tools the company is going to use and what the approach is going to be," she said. "If the policies for the company are spelled out and employees know what is acceptable use, it will clear up a lot of these issues."
For many, it may be best to limit social media use to a designated person, according to Schuman. Rather than having every employee tweeting business information from personal accounts, have a go-to social media person who oversees company information.
"If the company is bigger, you will even see three or four social media managers," she said. "Rather than having four or five Twitter handles, the company can maintain one Twitter account. When a message is sent out, the person can sign off with their initials. That way, the company always owns the Twitter account."
Schuman advises clients not to mix business and pleasure when it comes to social media.
"I think it's a mistake to have a Twitter handle with your name and the company name on it," she said.
On the flip side, there are opportunities for employers to capitalize on employees' robust personal social networks - but in a controlled fashion, she said.
"A lot of companies are afraid of this, but if you have a great event going on or a great product launching, I don't think there is anything wrong with having employees mention it on their personal social media," she said. "I see it as a great opportunity to reach a lot more people."
Scott Horton is a partner in Jaeckle Fleischmann & Mugel LLP and the firm's resident expert on social media law. While he agrees that it's critical to have sound policies in place, he still sees many employers that haven't addressed the specific question of ownership.
"What I've been doing lately is writing additional language in that speaks to that issue," he said. "Something that covers the idea that if you are operating any social media accounts, you do so with the knowledge that they belong to the company and that upon your separation you are required to cease using the account."
Horton said the law has yet to show a cut-and-dried answer. Even the recent Twitter case that made national headlines was a settlement, lacking the court coming down on the side of either the employer or employee.
"Even when we do begin to see more decisions, those are going to vary state by state and court by court as the laws vary," he said.
The answer, according to Horton, may come in enacting specific laws put in place to answer the ownership question, something he expects will eventually happen.
A trouble spot for many occurs when companies are adding a new social media policy and trying to control employees who have been using personal accounts for business while no policy was in place. Since you can't undo 1,000 LinkedIn connections or 3,000 Twitter followers, what does Horton see as a viable option?
"The employer should try nonetheless to come in with a policy that can later be pointed to to say, 'We put a policy in place and they continued to use the personal account for business.' Beyond that, as far as the legal analysis, it is going to come down to the question of why did you create the account versus what the nature of your position with the company is," he said.
Horton said employees may opt to negotiate terms of ownership when joining a firm. For example, a salesperson with a Twitter following of 10,000 may use that as a negotiating tool during the interview process. They can also spell out that when they leave, their Twitter handle and its followers go with them.
Again, it comes back to clear-cut policies and well-defined expectations. Horton said while it's still largely uncharted water, job descriptions may also play a factor in determining ownership.
"If an employer can demonstrate that you were hired or paid to grow social media or serve as a manager of the company's social media platforms, ownership may be more clear," he said, "versus you come to work for the company and just happen to have a LinkedIn page, where it gets a lot more gray."
Mark Moldenhauer, a labor and employment attorney with Bond Schoeneck & King, said social media has become just like any other asset to a company. Just as employers fight to protect trade secrets, intellectual property and the like, so too should they ensure the security of their business when it comes to social media.
"It is better for employers to put a policy in place to stop the bleeding, so to speak, if they see this as a true asset to the company," Moldenhauer said. "Because the longer they wait, the harder it will become to resolve any dispute over ownership."