Facebook, Twitter, LinkedIn and other social networks have become a crucial tool in establishing and building business relationships for many companies. Employees are increasingly connecting with current and potential customers using social media in order to promote themselves and their employers.
However, what happens to social media accounts when employees decide to leave for greener pastures? Do employers have any rights to such accounts, or to stop their former employees from using them?
Employers have always taken an interest in limiting contact between their customers and former employees. A substantial body of law has developed over the centuries concerning matters such as employees retaining customer lists and business cards. How these laws will apply in the age of social media is yet to be seen, but cases are beginning to emerge.
In England, a court recently ordered an employee to hand over to his former employer all the employee's LinkedIn contacts and all communication sent through his LinkedIn account. The employee was also required to provide documents (eg emails and invoices) concerning any business he had obtained through those contacts.
A case recently heard in the United States suggests a countervailing view, this time concerning a contractor. One of the contractor's duties was maintaining a Twitter account, which attracted several thousand followers. When the contract ended, the contractor took the Twitter account with him, apparently with his principal’s consent. One year later, the principal commenced court action against the contractor for lost exposure and opportunity regarding the followers. This case did not ultimately reach trial, with the principal settling in favour of the contractor for a reported six figure sum.
With many differing details and opinions, and many cases currently on hand but yet to be decided, there's not currently a clear cut answer or rule that can be drawn from these cases. The rights an employer may have to an employee's social media account, or the business contacts in those accounts, may depend on factors including:
Balancing the employer's and employee's interests is not easy. Employers have an obvious interest in employees cultivating business connections for the employer through social media. However, employees may be reluctant to apply effort to social media if they have no rights regarding those connections when they leave, particularly if those connections were initially established prior to their employment outside their current role.
The application of the law in relation to social media is in its infancy. However, legal principles from pre-social media times are still relevant and clearly indicate that the best method of regulating the interests of employers and employees is through comprehensive employment contracts. Modern employment contracts and company policies should address each party’s rights to social media accounts and contacts made before and during the employment relationship, and each party’s rights following termination of employment.
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