Some employers may allow, or even encourage, employees to establish social media accounts identifying them as representatives of the employers. But who owns these social media accounts after the employment relationship ends? The cases that have been decided thus far make it clear that if the employer wants to establish ownership of the accounts it is best to have a policy in place that addresses the issue.
In Eagle v. Morgan Dr. Linda Eagle was fired from her position at Edcomm, and thereafter Edcomm attempted to take control of her LinkedIn account. Once EdComm took control of her LinkedIn account, Dr. Eagle sued. In ruling for Dr. Eagle and rejecting EdComm’s counterclaims the court noted that Edcomm had no policies regarding employee use of LinkedIn, that Edcomm did not pay for employee LinkedIn accounts, and that LinkedIn’s User Agreement states that the account is between LinkedIn and the individual user. Thus, the court held that Edcomm had no ownership rights in the account even though the account was created using Edcomm’s email system and computers and was created to represent Dr. Eagle as an employee of Edcomm.
In Ardis Health, LLC v. Nankivell, Nankivell was terminated by her employer, CYC, and refused to turn over company “Access Information,” which included passwords and other login information for social media accounts and websites, and content on those accounts and websites. When she began working at CYC, the company had her sign a “Work Product Agreement” which provided that all work created or developed by Nankivell was the property of CYC. The court concluded that CYC owned this Access Information and forced Nankivell to return the Access Information to CYC.
In BTS, USA, Inc. v. Executive Perspectives, LLC, the defendant, Bergmann, posted about his new position with a direct competitor to his old company, BTS, USA, Inc. (“BTS”), on his LinkedIn page. Those “linked” with Bergmann could see his postings about his new job. Amongst those “linked” with him included several clients and contacts he developed while at BTS. BTS sued claiming Bergmann’s LinkedIn postings violated the non-compete agreement he entered into with BTS. In holding that this was not a breach of his non-compete agreement the court noted that “BTS had no policies or procedures regarding employee use of social media, did not request or require ex-employees to delete BTS clients or customers from LinkedIn accounts; did not discuss with Bergmann his LinkedIn account in any fashion,” and allowed employees to maintain LinkedIn accounts without monitoring or restriction.
Based on these cases, employers who want to establish ownership of a social media account created by an employee should adopt a policy which expressly states that the employer owns the account. Remember, an ounce of prevention is worth a pound of cure.