Social Media and Your Business – How to Secure Ownership of your Businesses’ Social Media Accounts
Are you sure that the social media accounts being used by your business are actually owned by your business? As business owners are becoming increasingly reliant on social media as means of identifying and interacting with their customers, the idea that a social media account (and its followers) used by the business can easily not belong to the business is a scary thought. The question of ownership is not a simple one; merely saying that you own a social media account does not mean much to a judge. This article will discuss several steps that can be taken to help secure and demonstrate ownership of the social media accounts created by (or for) your business.
Enter into Agreements Regarding Account Ownership
The easiest way to secure ownership of a social media account is to enter into a written agreement at the very beginning of the relationship (prior to the creation of the social media account or the hiring of the individual) which outlines ownership of the social media account (or accounts) at issue and all the various components (profiles, access, content, followers, etc.) of the account (or accounts).
This type of agreement should be used whether the individual interacting with the social media account is an employee or an independent contractor/third-party vendor.
In addition to when a social media account is created, an agreement regarding ownership can be entered into at any time. More information regarding the process of transferring ownership of a social media account can be found in the next article in this series. LINK XXX.
If the social media account has already been created, content uploaded, and now an individual or vendor is refusing to acknowledge that they do not own the account, do not lose hope, the courts consider several factors when determining ownership. It is also useful to keep these factors in mind when creating a new social media account or while using current accounts.
Factors Considered by The Courts in Determining Ownership of Social Media Accounts
While this matter has not been fully litigated, and is considered to be unsettled in several areas, the courts which have considered the issue of social media account ownership have generally considered the following factors, among others, to determine whether a business or an individual should be considered the owner or in of control a social media account:
- Account Creation. The courts have considered who created the account or who directed that the account be created when determining ownership. In those situations where the business created the account or tasked an individual with creating the account, the courts have considered this to weigh in favor of the business.
- Account Credentials. Not surprisingly the courts will look to the username or other name associated with the account (the name used when interacting on the account) to aid their decision as to ownership. If the account’s name includes the individual’s personal name, even in conjunction with the business’ name, the court will consider such to weigh in the individuals’ favor based on the theory that the individuals’ personality has given the social media account part of (or all of) its’ value. To avoid confusion over ownership, busines owners should refrain from using an employee’s name (or any portion of) as part of the businesses’ social media account’s username.
- Type of Account. The type of social media account at issue will often be considered by the court. Those accounts which provide the account holder with greater information about its followers (e.g., provide follower’s e-mail addresses or contact information) lend support to the argument that having access to the account (and the related information) is critical to a businesses’ continued marketing efforts and weigh in favor of the business gaining ownership of the account (or at least ownership of the followers and their information).
- Account Usage/Purpose. As discussed above, the courts will look to see if the account was strictly business use or if it was also used for personal matters. If the court finds that an individual used the account to discuss personal or other non-business-related topics, this will weight in favor of the individual. On the flip side, if the court finds that the account was used solely for business-related items, this will weight in favor of the business.
- Related Agreements. If an agreement exists related to the ownership or creation of the account, the courts will consider such when making their decision. However, certain courts have decided in favor of the individual in those situations where no agreement existed (the courts have held that the absence of an agreement weighted in the individual’s favor). Based on such, it is recommended that agreements addressing confidentiality, work product, and account ownership be entered into with all employees and independent contractors.
- Involved Industry. While not an obvious consideration, the courts have considered the type of industry involved when determining ownership of a social media account. If the business at issue is involved in an industry which is driven by the use and possession of secret information, as opposed to an industry driven by customer service or company size, the business can make a stronger argument that the information contained within the social media account belongs to the business and not to the individual.
- Content Creation. Similar to account creation, the courts will look at who created the content or directed that it be created. Those that considered the issue of content found that personal use (or non-business-related use) of a social media account weighted in favor of the individual owning the account. On the flip side, when the court found that the social media account was used solely for business-r
elated items, such was weighted in favor of the business. To eliminate any potential disagreements over ownership, personal posts (or other items) should be prohibited; only business-related posts (or other items) should be allowed.
Content Counts- Control It As Much As Possible
To prevent items (inappropriate or not) being posted unknowingly on any of a businesses’ social media accounts, controls, such as policies and procedures, should be established regarding the type and substance of the items posted to each social media account used by the business and should clearly indicate who has authority to post to the account. Copies of these policies should be distributed to everyone who has access to the account, and it is recommended that everyone who receives a copy be required to acknowledge (in writing) that they received such and agreed to abide by its terms.
While it may be simplest to prohibit the posting of business-related content on personal social media accounts, certain businesses may wish to allow employees to use their personal social medial accounts to promote the business or its products. If a business chooses to allow such behavior, it is recommended that a clear written policy be established regarding the posting of business-related content on personal social media accounts and that such policy be communicated on a regular basis to all employees and independent contractors.
In some situations, based on the extent that the personal social media account is used on behalf of the business, businesses owners may wish to request that employees and independent contracts agree (in writing) to provide access to, or transfer ownership and control of, such personal social media account to the business, when asked or at termination.
Now that you are familiar with the items considered by the court when determining ownership of a social media account and the steps that can be taken to secure ownership of your business’ social media accounts, you are ready to move on to the process of transferring ownership of existing social media accounts.
Please read the other articles in this series available at: Who Owns Your Business’ Social Media Accounts?, When to Restrict Access to Your Businesses’ Social Media Accounts, and Steps to Take to Document the Transfer of a Social Media Account.
Should you have any questions about the process of restricting access to your business’ social media accounts, securing ownership of your business’ social media accounts, or how to properly transfer (and document the transfer of) a social media account, or would like to schedule a free initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.
Navigant Law Group, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.