By Bob Sullivan
If you and your company get an ugly divorce, does your company get to keep the friends?
A controversial court ruling last week has shined a light on this made-in-the-digital age problem: Who owns Twitter followers, Facebook friends and LinkedIn connections when employers and employees part ways? With personal and professional lives mingled online as never before, a distinctly 21st Century fight is brewing over who owns your friendships.
A ?federal judge in Pennsylvania on Oct. 4 rejected a claim by Linda Eagle that her prior employee had illegally accessed her LinkedIn account after she left her company, Edcomm. Workers there changed Eagle's password after her departure, preventing her from accessing critical contacts and, she claimed, damaged her ability to find new work.?
But the judge dismissed most elements of her lawsuit, giving fuel to those who argue that social media groomed at work belongs to employers.
"The initial outcome of the case is very troubling," said Bradley Shear, a Washington, D.C.,-area lawyer who specializes in social media. It opens the door for employers to claim ownership of any social account -- even personal accounts -- because Eagle's account was created under her own name, he warned. "It demonstrates there's a need for people to become much more educated about this."
Other court rulings have hinted that courts might be inclined to see things the employer's way.? Earlier this year, a federal California court allowed a publication named PhoneDog to proceed with a lawsuit against former writer Noah Kravitz, who had amassed 17,000 Twitter followers while working there.
Kravitz claimed the followers were his, but PhoneDog sued for ownership in 2011, and the judge denied a motion to dismiss the case in a February ruling ? a positive sign for PhoneDog?s legal argument. Two other recent cases also sided with firms making ownership claims on social media contacts.
Eric Goldman, a law professor at Santa Clara University, cautioned that each of these cases is "incredibly fact specific," and none establishes a universal principle that could be widely applied. Still, workers should be on notice that their employer getting their ?friends in the divorce is not so far-fetched.
"People should learn from this that it's dangerous to mix business with pleasure," he said.
In many ways, the "who owns the connections and the conversations" issue is unique to social media and the digital age.? In the past, there was never any question that a public relations professional was speaking on behalf of a company, and that communication was company-owned ?? ?as were the contact lists. But what of a long-time flack who arrives at a new firm with a long list of her own Twitter followers, and who writes messages using that account that are decidedly personal?? Who owns those messages, and those contacts? The issue is as murky as most employees' work-life balance.
?Many of these accounts have 'mingled interests,' " Goldman said. ?That makes things difficult.?
In fact, the very nature of social media means the accounts don't really work unless they have a touch of personality. Tweeted press releases aren't interesting on Twitter; personal wit is regarded above all, and encouraged at every smart firm with a social media presence.?
On the other hand, it's reasonable to think of LinkedIn contacts as akin to customer lists, which are clearly proprietary and belong to employers as intellectual property. For decades, firms have claimed ownership of client lists (and employees have tried sneak out the door with them). If a LinkedIn account is little more than a list of business connections that are directly related to a job, why wouldn't a company claim it?
Of course, fights over Rolodexes aren?t new ? but old-fashioned piles of business cards make a poor analogy for a long-curated group of Twitter followers. ?Besides, users who have a developed a personal relationship with a social media creator aren't likely to be much use to a company which takes over an account, Goldman noted.
?You can grab the Rolodex, but you can?t really grab the relationship?? he said.
There's also the subtle "you are nothing without me" argument. When television anchor and early Twitter adopter Rick Sanchez left CNN, he had a follower list of 150,000. Without CNN, Sanchez would not have compiled such a following, and when he left, observers imagined a brewing controversy. A fight was averted when CNN Sanchez keep the list as long as he changed his Twitter handle, from @ricksanchezcnn to @ricksancheznews .
LinkedIn hasn't offered a lot of guidance in the issue, but in a brief statement to NBC News, the company seemed to suggest that it might take up the fight on behalf of users at some point.
"We don't know the specific facts and circumstances of the relationships or agreements between Ms. Eagle and her former employer, nor are we parties to the lawsuit, so we can't comment on it specifically," said LinkedIn spokesman Hani Durzy. "However, LinkedIn prides itself on being a members-first organization, and in general we believe that a member's professional profile belongs to them.?
Other digital-era issues offer conflicting notions.? In the United States, employees have no right to privacy over emails they write at work, even if they are using personal email accounts. Employers are within their rights to employ snooping software to watch everything workers do with company computers.? That might suggest any Facebook or Twitter work done by an employee on company property belongs to the company. On the other hand, there's a long history of domain name confusion that sides with workers. Employees who register company domains in their own names, for example, often end up with an awful lot of leverage after they leave the company -- they can redirect the domain, for example.
To Shear, the lawyer specializing in social media, that leads to a practical question for companies that might be inclined to make claims on social media accounts.
"LinkedIn is an external system. Why are you are putting resources into an external system that you don't have control over?? Companies prefer their own email to Gmail for this reason," he said.?
One critical element of the Eagle case is that she had shared her password with a coworker, who updated the LinkedIn page for her. That put the company in a good position to make a claim -- it could change the password, lock her out and ask questions later.? So should employees refuse such password sharing? Some companies compel users to do so, though increasingly state legislatures are considering laws making the practice illegal. ?Meanwhile, most social networks -- including LinkedIn -- say it's against their terms of service to share passwords.
There may already be existing laws that cover a lot of this controversy. Non-compete and non-solicitation agreements -- which prevent workers from contacting clients after exiting a firm -- prevent a lot of the issues that businesses are really concerned about when they make social media contact claims.? Still, those are often unenforceable, particularly in California, which has broad employment right laws. That has Shear and Goldman concerned that future employment agreements will contain the broadest possible provisions, with companies seeking rights to all online relationships while workers are in their employ.
"That would be an egregious overreach," Goldman warned.
It would also kill the spirit of social media, as popular Twitter posters would disappear overnight, each time they change jobs.
"In the end, we as readers will be the losers, because we won't be able to find the people we are looking for," he said
There is one saving grace in this discussion: Despite our pride of amassing a few thousand friends or followers, Goldman points out that most social media accounts are not so valuable that they are worth fighting over in court.
"The economics don't support litigation," he said. "How much is an account with 17,000 followers worth?? At $1 a follower, that's $17,000 -- that would hardly even get (the lawsuit) filed."
RED TAPE WRESTLING TIPS
Both Shear and Goldman stressed that companies need to have very specific social media policies -- pre-nuptial agreements, if you will -- specifying who gets what when the inevitable breakup arrives.?
For workers who are concerned, Shear offers three quick tips.
- Make sure the email used to set up the social networking account is a personal email that you control, not a corporate email address that can be cut off -- and could be used as evidence of ownership in litigation. Also, use personal contact information, such as a home number and address.
- Make sure the name on the account is personal -- Sally Smith, not Sally_XYZCompany. Finally, use a personal photograph, rather than a company logo, in the profile picture.
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