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Grey Area in Privacy Laws for Employees Using Social Media

In 2014 if you are on social media, chances are this ever changing new media has permeated both your personal life and professional life. It has become an imperative for professionals in all fields to have some level of online social engagement, whether it be organisations promoting employee social networking, or asked by marketers to show the ‘face behind the company’ and cultivate the personal brands of employees, and even CEOs.

This dates back to the era of Myspace in 2007, with US politicians (and Australian politicians quickly following suit) actively encouraged to create a profile to engage with and appeal to the youth demographic. Perhaps the biggest success of utilising social media to promote a personal brand (the politician) over the organisation (Australian Labor Party) was the Kevin ‘07 campaign, which won Labor the 2007 federal election. Viewed by many as a landslide win thanks to Labor’s pitch to ‘Generation Youtube’, it became clear the emerging new media had incredible reach.

The golden era of Myspace and before the rapid commercialisation of social media is now a thing of the past. State and federal privacy laws remain woefully underdeveloped against the rapidly evolving social media landscape. Any organisation using social networking sites needs to have a clear understanding of the privacy laws governing business participation on social media.

In 2011, a US-based mobile technology news platform PhoneDog, sued an ex employee for refusing to hand over his Twitter handle with 17,000 followers after leaving the company. PhoneDog alleged the employee’s Twitter account was used for company purposes and charged him with misappropriation of trade secrets. It seems almost ludicrous that a disagreement over ownership of Twitter followers was taken to court, but this serves as a cautionary reminder that intellectual property laws do apply to social media accounts. It sounds logical that if your job is to manage a social media account, then your employer should obviously have access to that account. Yet the other side of the argument is, in many cases when an employee’s account contains their personal opinion on controversial topics, i.e. religion and politics, the company may be better off not claiming any affiliation with it.

For many of us, the lines between our professional and personal social networking accounts are already blurred. Twitter perhaps remains the best example of this- if your personal brand is clearly an extension of the company’s interests, it is still very important for you to maintain a separation between your private views and your online ‘persona’ as a public face of the company. This can be tricky in practice, but until there is national reform on privacy laws, the onus remains on all of us as online citizens to proactively maintain that public/private distinction.

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