"Many employers today don't give much thought to post-employment ownership of, say, Twitter followers," said attorney Jennifer Archie, a privacy and data security specialist with Latham & Watkins, who has counseled dozens of employers about workplace policies and employee agreements related to social media.
An example of how far the issue is from many employers' minds played out last year when Jim Roberts, a prominent editor at The New York Times, left the paper, taking some 75,000 Twitter followers with him. The paper reportedly had no policy in place to address the issue, and the 26-year-old Times staffer simply changed his handle from @nytjim to @nycjim. The Times apparently opted not to sue. His current follower count: about 82,000.
Some, like Kletter, argue that because Twitter followers are typically real people, who can be seen by anyone clicking on a person's followers link, and who follow and un-follow accounts as they please, the legal basis for claiming ownership of them is questionable.
In cases where a social media account was created as a personal one before the employee joined the company, and then used for both personal and work purposes, it's likely even harder for an employer to claim ownership, Kletter said.
Determining what makes an account personal versus professional is tricky in an age of near-constant social networking, said Archie of Latham & Watkins.
"People's professional work often bleeds over into their personal time thanks to the interconnectedness of mobile devices, and that's only one way ownership disputes can arise," Archie said.
Facebook and LinkedIn each said via email that their official stance is that users own their accounts. Twitter's terms of service say its users own all the content they post to its site.
Because the dividing line between personal and professional is so blurry and varies with the job, the best way for employers to avoid legal disputes is to craft clear policies about how employees should use social media, and what happens to an account when an employee leaves the company.
The policy should at the very least make clear whether the company or the employee will own job-related social media accounts, said John Delaney, a partner with the law firm Morrison & Foerster.
"In journalism, for instance, sometimes the journalist might have a larger following than the newspaper or magazine itself, so spelling out a policy up front could even be a topic of negotiation," said Delaney, who heads Morrison & Foerster's social media practice group.
If a company wants to claim ownership of a social media account, ideally it will keep the employee's name out of the account name, and instead reference the company's name or its brands, he said. And if a company owns an account, it should be used exclusively for business, and not for employees' personal use as well.
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