There is no question that the technology revolution has changed, and will surely continue to change the way we do things. In some respects, we are moving to new ways of operating altogether. This can become especially challenging to organizations. Existing policies and governance documents often don’t address many of the unforeseen and complicated nuances that can arise as employees become socially active on behalf of the organization or for its gain. Provisions in existing non-disclosure and confidentiality agreements may not be clear enough to address the changed business environment.
As organizations and individuals navigate these new mine fields we will all run up against the edges of previously explored legal territory. We are setting precedent every day. Here are just a few examples in the last couple of years where social account management and ownership have come into play, in rather high profile and costly ways:
Legal battle over ownership of Twitter followers:
Noah Kravitz and PhoneDog had a working relationship. Depending on which article you read that relationship takes on different forms, but they had a working relationship none the less. PhoneDog made a variety of investments to promote their product and engagement efforts with their customers. Noah Kravitz was part of these efforts. In doing so Kravitz amassed a rather large following on Twitter. At some point he made the decision to leave the company to pursue other opportunities.
PhoneDog later pursued legal action against Kravitz because he took his Twitter account with him, changing the name from PhoneDog_Noah to a more personalized NoahKravitz. Their allegation was that this was a business asset they had made investments to in the form of a customer list and it was company property. There was another law suit at play where Kravitz was seeking a claim over a percentage of the site’s revenue based on the conditions of their relationship that he claims spawned their suit. Both of the lawsuits are still in progress.
Court orders individual to hand over LinkedIn contacts:
Mark Ions was a consultant based in the UK. Ions, like many professionals, used LinkedIn to expand his networks a professional and as a function of his job. He was encouraged by his employer at the time, Hays Specialist Recruitment in using this platform for that specific purpose. Problems arose however when Ions decided he wanted to start his own competing firm. He used his LinkedIn network in that process.
Hays did not approve and took legal action. Courts ruled that Ions was to hand over and disclose not only all of his contacts, but additionally, all documents, invoices and mails that were sent and received from that account from the Hays’ computer network.
Ex-employee’s targeted via litigation for misappropriation of LinkedIn account:
Sawabeh Informations Services (SISCOM) acquired Edcomm in 2010. Several months later the founders of Edcomm were fired. Dr. Linda Eagle was one of these founders of and a central party to the lawsuits that ensued after the firing. After the firing Eagle continued to utilize her LinkedIn account which spawned the litigation. Because the account had been used used (by multiple parties) for business purposes, SISCOM alleged they had made significant investment and therefore it was company property. They went so far as to change the profile name, information and picture to that of a new employee internally.
Employer asked job seeker for log-in Facebook credentials:
Justin Bassett was interviewing for a new job. DUring the interview process the interviewer sought him out online – looking specifically for his Facebook profile. When the interviewer could not find him because his profile was private they insisted on him handing over his log-in credentials so they could evaluate his page that way. Justin did not hand over his credentials and ultimately withdrew his application on the grounds that he did not wish to work for a company that would seek such information. This is a prevalent practice amongst public agencies and offices.
There have been cases similar to these that never reached the court system. Rick Sanchez was fired from CNN. During his tenure at the station he developed and utilized for CNN related purposes a branded Twitter account (@RickSanchezCNN). When he was fired there was much speculation in the social media world as to whether or not he would be able to keep his handle, and whether or not there would be a ‘to-do’ about it. Rick did maintain access to the account, and to public knowledge, CNN never raised a legal finger to stop him. (That’s of course not to say there weren’t possibly discussions about it privately.) Another similar example was when Frank Eliason left Comcast. He had long utilized the popular @ComcastCares account as both his personal and Comcast-business-related account. He proactively handed the account over to Comcast during his departure – there was no litigation.
Social media will continue to mature, and with it organizational operating models along with it. In the process there are bound to be many more legal battles. The cases outlined here are only the tip of the iceberg. As an industry we have in no way reached the point where there is unilateral consensus on how these types of situations should be handled. Additionally as professionals the lines between our personal and business-related presence online will continue to blur and overlap. As we evolve and seek understanding it is important to remember that we’re not only fighting these individual battles – but also setting the [legal] precedent for how our industry operates going forward.
In this environment with little certainty an organizations best defense is, albeit trite, a good offense. A statistical analysis of Trade Secret litigation by Gonzaga law review found that the majority of times cases are brought forward, favor is found with the employee. Proactively protecting your company through the use of confidentiality agreements and policies will go a long way to preempting costly litigation and distracting media attention. Protection related governance is not the only way to help mitigate risk. Empowering your employees through education and awareness can help create environments of knowledgeable action and thoughtful behavior. The growth in social media popularity has brought about revolutions, saved lives and changed forever the environment in which we do business. It will continue to evolve and change and grow. Every court case and every piece of legislation is helping to shape tomorrow’s online environment. Your individual and organizational actions today will impact that tomorrow.