Who gets your social media contacts when you die?
I ask the question partially in jest, but a very close variation to that query has become an important issue in law: Who gets the professional social media contacts when one of your employees leaves? The specific issue here deals with LinkedIn accounts.
See if any of this sounds familiar, or at least feasible: You encourage an employee to establish a LinkedIn account and make contacts with clients and potential clients. He or she downloads the company phone list from the server on your company’s LAN and uses that info to identify more possible LinkedIn contacts. The employee does well and even starts a professional group on LinkedIn, garnering more contacts.
More valuable than paper clips
Of course, all good things must someday end and this employee moves on to start a competing business. Many employees will walk out with the company stapler and a ream of copy paper, but what about these contacts? Who now owns this goldmine of professional contact information? Before you render your legal opinion, let’s add one more wrinkle: According to the LinkedIn user agreement, “If you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us.”
Now what do you say?
As our use – nay, dependence – on social media increases, the law is having a bit of a struggle keeping up with the pace, so we can expect more clarity/confusion (choose one) on this in coming years. However, so far U.S. courts seem to be siding with the individual. After one Pennsylvania woman’s former company terminated her, the company took over her LinkedIn account, changed all its details and “assigned” it to its interim CEO.
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Citing the LinkedIn user agreement, the court ruled on the side of private individual ownership of the social media profile. However, it didn’t find that the company had caused any damages to the woman.
The worst-case scenario
But what if the employee were to take that valuable contact information and use it to jump start a competing company? This brings the issue into sharp focus. And with the addition of other problems, like cyber bullying, there is no doubt that every business needs a comprehensive social media policy.
To deal with the question of who owns and controls accounts such as LinkedIn, you need to spell out your expectations for the use of professional contact information gathered while employed. For example, if an employee gets the personal email address of a client, must it be uploaded to the company’s master database of contact information? Don’t allow a scattered network of employees to be the sole repositories of this valuable data. Also, clearly define who owns this information and how it may be used appropriately.
You need to anticipate employees leaving and how this will be reflected in social media profiles. You can require employees to “disconnect” from your clients that they met solely through the auspices of your company, although in practice this may prove difficult. That makes non-compete and non-solicitation agreements even more important.
If you don’t have these kinds of agreements, now is the ideal time to put them in place. Look at the issues of trade secrets, confidentiality, non-competition, non-solicitation and non-disclosure in light of the risks presented by social media when you revise or draft new agreements. Bring everything up to date.
As much as is possible in light of how quickly social media is evolving, this will put you in the best legal position should a problem arise.