Do You Know How to Avoid Legal Pitfalls on Social Media?

MarketingXLerator
Natascha Thomson Owner/Partner, MarketingXLerator

Posted on July 11th 2014

Do You Know How to Avoid Legal Pitfalls on Social Media?

Many of us think that we don’t have to worry about the legal implications of our social media activity, especially if we do it “outside of work”. In reality - while the law is slow to catch up with new technologies - there has been an increase in social media court cases. Are you prepared?

The lines between work and home are rapidly blurring, and businesses have to have good legal council to navigate this brave new world.

Well, the clock has started ticking. As of late, many social media-related cases have been brought before courts to rule on questions like:

  • Who owns your LinkedIn account?
  • Who owns your contacts?
  • If you are an employee, does your company own your social account?
  • Who owns the updates?
  • Who is responsible for them?
  • Will a law firm be held liable for legal updates posted by one of their lawyers on her LinkedIn account if somebody acts on her “advice”?
Scales of justice image by stockmonkeys.com, via Flickr Creative Commons. - See more at: http://www.huseby.com/blog/uncategorized/law-roundup-steps-for-changing-...

Legislation in Progress

You are probably familiar with Uber, and the legal battles they have been fighting to operate their “ride-sharing” service.

A recent article by Anna Gallegos, titled The Four Biggest Legal Problems Facing Ridesharing Services, lists non-compliance with the Americans for Disability Act, non-compliance with local regulations, lack of insurance (crimes have been committed by Uber drivers), and non-compliance with airport policies as some of the key issues. This is just the tip of the iceberg. The unsatisfying answer is that “the jury is still out” on how this will end.

When I recently sent a tweet about Uber, a woman from Australia replied to me, saying that the service was currently banned in her city. The article she referenced, Taxi app Uber banned in NSW by Kye White, from April 30, 2104, states that the Australian New South Wales government has declared ride-sharing apps illegal.

The challenge is mainly a lack of precedent. The legal system in the USA and in many other countries, base their verdicts heavily on decisions that have been made by courts in the past. I the case of Facebook, LinkedIn or Twitter, there is a void of past decisions.

What Does that Mean for You?

So what does that mean for you as a private person as well as an employee or business owner?

Fortunately, I was so lucky to attend the presentation of Paul Cowie, Partner at Sheppard Mullin, titled: “Not So Fast! – Employment, Ownership & Privacy Concerns When Using Social Media For Business." Paul focuses on labor law and has been involved in social media cases in Silicon Valley.

When summarizing things I learned from Paul’s presentation, I apologize to him in advance for any misrepresentations of his content; as I am obviously not legally trained. This stuff is complicated.    

Three Real- World Cases

  1. Who owns your LinkedIn account and contacts?
  2. Who owns Twitter followers?
  3. Who owns your websites, blog and social channels?

1. Who owns your LinkedIn account and contacts?

Case: Eagle vs. Morgan

  • What happens if you leave your company?
  • Who owns your LI contacts?

Your LI contacts could be your client and partner Rolodex.

Surprisingly to me, this case falls into the area of trade secrets. What is a trade secret (for Dummies 101)?

  • A list of law firms is unlikely to be a trade secret. But, a client list of a small business owner, e.g. masseuse, could be a trade secret.

Back to Eagle vs. Morgan

Ms. Eagle had a LinkedIn profile with private and business contacts. She gave other employees the login and password to this LinkedIn page.

When she left her job at the company, who owned her profile? The person who created it or the employer whose business was promoted via the account? (I am simplifying here, as the case is quite complex).

The company proceeded to change the picture and name on Ms. Eagle’s LinkedIn page and took over her account. Was this legal or not? The employer, Morgan, were ordered by the court to give the account back.

Why?

The Verdict: Liable: the unauthorized use of name, invasion of privacy by misappropriation and misappropriation of publicity.

No Damages where paid to Ms. Eagle, as she did not incur any financial loss.

The case could have ended differently, had there been a company social media policy.

2. Who Owns Your Twitter Followers?

CASE: @PhoneDog_Noah

An employee worked as a product reviewer and video blogger. He had access to the company’s branded Twitter account and used it to market his employer. When the employee left the company, he renamed the account and kept on using the Twitter account.

Was this legal?

Here an article on the case, written by Robert Booth of The Guardian: Company sues ex-employee for his Twitter followers

A Twitter user is being sued for £217,000 by his former employer for taking his online followers with him when he switched jobs. Noah Kravitz, a writer from Oakland, California, amassed 17,000 followers on the social networking site when he worked for PhoneDog, a website providing news and reviews about mobile phones. He posted Twitter messages under the name @Phonedog_Noah, but in October 2010 he left the company, renamed his account @noahkravitz and took his following with him. PhoneDog has launched legal proceedings seeking damages of $2.50 a month per follower for eight months, for a total of $340,000. The company is arguing that Kravitz's list of followers constitutes a customer database and the valuation is an estimate of how much each follower is worth to the company.”

There was no court ruling as the case was settled.

There was no social media policy in place.

The question of Twitter follower ownership is huge, particularly as more and more companies are tapping into their employees as brand advocates. 

Who Owns Your Website, Blog and Social Channels?

CASE: An employee created websites, blogs and social media pages during their employment for a company.

Who owns the channels?

Verdict: OWNED BY employer

  • Created during employment
  • Employee signed agreements that all she created would be “sole & exclusive property” of employer
  • Minor point – she was employed to create this content

What Does That Mean For You?

So what can you do to minimize your risk on social media, personally and professionally?

  1. As a business, you need legal council to make sure you have a social media policy, as having a social media policy is legally a good thing for your company. But it needs to be legally sound. You need to keep current with the latest rulings and adjust your policy as needed. Example: comply with NLRB rule, which – to make it even more complicated – are also a moving target.
  1. As an employee, know your company’s social media policy. If you do, you might be able to negotiate some exceptions or get in writing that you get to keep your existing social channels and followers when you leave. But also know that your employer’s social media might not hold up to the law. By signing it, you are accepting it. So if it’s within the law, you have to comply. If your company comes after you, it pays to check if their policy was NLRB compliant, e.g. did it have a chilling effect?
  1. No matter who you are, remember that social media is never really private. From hackers, to glitches to trials, your secrets might not be so safe after all. So post wisely, and keep information that you don’t want anybody to know off the Internet. And no, Apps like Snapchat do not make your information disappear after you shared it. The Internet is forever.

I hope you found this article useful. My main-take away is that while there is little precedent, be aware and alert of the situation. If you have employees, you need to involve a lawyer to avoid a bad awakening.

Here 3 More (somewhat related) Take-Aways from Paul’s Talk (my words, not his):

  1. Consider having a social media channel that is “work free”, for example Facebook. Don’t friend your boss. Even with the best intentions and common sense, you might post things that you later regret. (There are lawsuits about people claiming to be sick but posting pictures of themselves sky diving).
  2. Know that your employer canNOT ask you for access to your personal social media accounts, neither via your login credentials nor by asking to look at your screen over your shoulder. [Note: "Technically this is subject to a limited exception with respect to disciplinary investigations."]
  3. Can you talk about your wages at work in California? No matter what HR tells you: YES, you can. It’s not illegal to do so.
MarketingXLerator

Natascha Thomson

Owner/Partner, MarketingXLerator

Natascha Thomson is the CEO of MarketingXLerator, a Social (Media) Business Consultancy. MarketingXLerator co-innovates with clients to create strategies that generate results through mutually beneficial relationships. Co-author of 42 Rules for B2B Social Media Marketing. Yogini. Yerdler. Motto: "Teach a man how to fish."

 

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