As individuals become more engaged with social media in their professional lives, employers are increasingly recognizing the need to address new challenges with respect to protecting their brand and commercial interests. Though it’s tempting to develop one-sided, draconian approaches, they are not usually in an organization’s long-term best interests. This post offers recommendations for developing a pragmatic, balanced approach to articulating the relative rights and responsibilities of employers and employees when it comes to questions of social media ownership in terms of both accounts and activities.
Many individuals and organizations continue to struggle with the question of social media ownership, which involves the accounts themselves, individual and page profiles, platform content and posting activity. Most of the related laws and regulations were written long before today’s social technologies were even created, let alone widespread, and there are few legal and business precedents to refer to. And even though there have been a number of legal cases over the years (e.g., Whitmar Publications Ltd v Gamage (UK), PhoneDog v. Kravitz (US), Eagle v. Edcomm (US), Maremont v. Susan Fredman Design Group, Ltd. (US)), their outcomes only provide partial guidance at best. Attorneys may be able to provide some legal advice about how to manage the relative rights and responsibilities of employers and employees when it comes to social media “property” and activity, but their advice can often be one-sided and draconian, emphasizing the employer’s rights rather than striving for a fair balance between employers and employees.
Although I am not an attorney, I have a strong interest in the legal issues related to social media and have been following and writing about them for years. I think it’s important to help employers develop pragmatic approaches to managing the risks associated with social and digital technologies in a way that doesn’t alienate employees and/or hurt their long-term organizational objectives. In that spirit, this post provides general and specific recommendations for employers regarding the question of social media ownership.
A good general rule to follow is that while an individual is employed by a specific organization, he/she is effectively an agent of that organization (click here to read about the law of agency). Therefore, the employer has a right to dictate certain things that relate to the individual’s employment and/or his/her activity. Those rights are not unlimited, of course: they must conform to existing laws and regulations (e.g., the National Labor Relations Act (NLRA), guidelines from FINRA), as well as employment policies and agreements. Once an individual’s employment ends, an employer’s rights generally only continue through the restrictive covenants included in certain employment contracts (e.g., non-compete agreements), as well as general laws such as defamation.
But legal considerations are only one aspect of risk management. Employers must also consider business and reputational risks. Here are a few recommendations along those lines:
Consider employee morale and the desire to be an “employer of choice.” The more one-sided and draconian an employer’s approach is to determining and communicating the relative rights and responsibilities of itself and employees, the more it is likely to alienate employees, reduce engagement, decrease loyalty, increase turnover, etc. Conversely, demonstrating consideration of the employee perspective can have a strong positive human capital management effect.
Take a long-term, relationship-oriented view rather than a short-term transactional view. Rather than viewing employee termination as the end of a relationship, it’s better to view it as a transition to a new relationship. An alum could become an employee again, or a key customer, a supplier, a business partner. He/she may serve as a great resource for candidate and client referrals or other valuable information/contacts. And at a minimum, he/she has the freedom to speak about his/her employment experiences, choosing to either promote or disparage the organization and its products/services.
Remember that rules can impact other stakeholders besides employees. Suppliers, clients, partners and other stakeholders form relationships not just with an organization, but with its representative employees. How departures of those employees are handled can impact those relationships. When they’re characterized by secrecy, punitive approaches and a lack of trust, they can damage an employer’s reputation, standing, and future business prospects.
Respect both employer and employee brands. We’re well past the era of “lifetime employment,” and most all individuals recognize that they must manage their own career and professional brand. Knowing there are no employment guarantees, employers must respect and support their employees’ rights and ability to pursue and find work in the future, even when they’re currently employed.
Using these considerations as a guiding force, employers should:
Here are some specific recommendations on the “Big Three” social media platforms, plus a few general comments on blogging. As evidenced by the notes on blogging, there’s an underlying set of principles that can be applied to various platforms and an individual’s activity therein. Relying on those principles can help both individuals and employers determine where the lines should be drawn on other sites like GooglePlus, YouTube, Flickr, Tumblr, Quora, Pinterest, SlideShare, etc.
These recommendations reflect my personal experiences with social media, the extensive reading I’ve done on the subject, my interactions with and observations of both individuals and employers, and my general expertise in related areas (e.g., employment law, human capital management). That said, this is still uncharted territory, and there are few definitive answers. When I first published this piece, I encouraged others to share their points of view, as well as other relevant resources. Here are a couple of my favorite responses:
Hi Courtney, Great post, thanks for taking the time to prepare such a comprehensive overview. I have just one thought to add: complicated and overbearing rules can discourage employees from participating in social media on behalf of their employer. I tend to work with companies with professional employees who are public facing but not necessarily executives, sales, or recruiting. If complying with company policy is too onerous, they are likely to reduce social media activity or simply leave the company out of their social media activity, which is a significant lost opportunity for their employer. – Bruce
Courtney, this is a really nice post that provides loads of substantive information — great job! As a technology attorney, I am most often faced with the question of “what can I do” which, I believe, is less appropriate than the question I choose to answer: “what should I do” — and the two are often quite different. My preferred philosophy in dealing with social media issues is that it requires a balancing of interests that takes into account the legal rights and responsibilities of all parties but also factors in the human intangibles because oftentimes adhering strictly to what is legally permissible simply isn’t in the best business interest of the client. Thanks for the great article!
And although they may be a bit dated, the following posts also provide some great insights:
I would love for folks to share more points of view, as well as other relevant resources and examples that illustrate what best (and worst) practices look like. I especially welcome contributions from people outside the US, since my knowledge is generally limited to this legal environment. Asking and answering questions is encouraged as well. Thanks!