The Pied Piper and Other Social Media Tales

There was a time when the only communication with the outside world during a working day was the morning post delivery or occasional telephone call. Times have changed. Mobile phones make employees accessible 24 hours a day, and the constant barrage of e-mails, tweets, text, Facebook and Twitter messages means a moment’s silence is rare.

For spheres of employment where social media is encouraged, legal problems are bound to arise. ‘Followers’, ‘friends’ and ‘contacts’ have become precious commodities in the business world, but to whom do they belong?

 There has been a dramatic increase in the number of social media disputes appearing in courts worldwide. In California, ‘@PhoneDogNoah’ is being sued for refusing to relinquish his Twitter contacts when he left PhoneDog to work for its competitor. Such cases are virgin territory for UK courts, so it will be interesting to see how they approach the challenge. They came close in June 2011, when Laura Kuenssberg, one of the most high-profile UK journalists on Twitter and the BBC’s chief political correspondent, left to accept a role at ITV. Formerly ‘@BBCLauraK’, it was anticipated that the BBC would claim rights to her account or her priceless 72,000-strong following. They did no such thing. Kuenssberg changed her account name to ‘@ITVLauraK’ and continued tweeting as normal.

Essentially, there was nothing the BBC could do. Taking over her account would have been futile, since those following her were doing so specifically to receive her daily thoughts and not those of the BBC. And forcing her to close down the account would be equally pointless – merely inconveniencing her fans; making them delete the old account and ‘follow’ the new one.

Although the BBC decided against legal action in this case, other employers may not be as lenient. Companies seeking to protect their brand should be wary of its use in social media, especially if it is incorporated into employees’ display names. Whilst it might benefit the account holder by attracting followers, increasing recognition and escalating their status by association, the employer’s gain may be negligible. Furthermore, without an employer-veto, employees posting freely may damage the brand by giving the impression that their tweets represent the ‘official’ views of the company.

What happens then if the account is registered to the employee’s own e-mail address, or used to post personal updates? This distinction will certainly create an abundance of legal problems. Companies will seek to establish ownership rights over accounts which generate interest, and distance themselves from those which are detrimental to their reputation. Due to the intense value of social media, establishing the account’s ownership is crucial. Are social media accounts equivalent to a work e-mail account, where access ceases on termination of employment, or, are they more like a personal address book, to be added to at the owner’s discretion?

The only guidance to date is the High Court case of Hays v Ions in 2008. Ions, a recruitment consultant working for Hays created his own LinkedIn account, using it to approach work contacts three weeks before resigning and setting up his own rival business. The court deemed the information Ions had taken to be confidential and ordered him to relinquish all contacts taken from his e-mail address book at Hays. Notably, Hays were not granted access to Ions’ entire database as requested. This result is extremely telling: the court is seemingly ready to intervene when misuse of online social accounts occurs, but recognises the intensely private nature of the information stored within.

Whilst content uploaded from an account would probably be governed by intellectual property law, how the courts deal with ownership of the accounts and their contacts is yet to be established. My view is if an employer wants to ensure control over work-related social media, they should register the accounts to a business e-mail address, and make sure they maintain primary control. A good social media reputation is an asset to be treasured, so just like an employee wouldn’t be allowed to leave with the company laptop containing sensitive data, they shouldn’t be allowed to take its followers either.

By Judy Benmayer of HighStreetLawyer.com