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Monday, 9 January 2012

@a crossroads: businesses and social media


Twitter, Facebook and LinkedIn have become part of daily life. LinkedIn and, increasingly, Twitter are being used for professional business purposes, and the law must adapt to keep pace, so … who owns an individual employee’s Twitter ‘followers’ and LinkedIn connections?
Court guidance would be welcome and reports of litigation against a mobile US news website, PhoneDog, by ex-employee Noah Kravitz may provide insight. Kravitz was a PhoneDog editor. When he left the company, he had 17,000 followers. The suggestion is he built this list during his time at the company, which wanted to protect what it considered a customer mailing list. When Kravitz left, he retained control of the Twitter account and changed his user name, “taking” his 17,000 followers with him. It remains to be seen what transpires, as PhoneDog has posted a press release making sensible soundings towards resolving the dispute.
If a departing employee removed his ex-employer’s customer list (electronic or hard copy) on leaving, this would be actionable in court. Does the same apply to a list of followers or LinkedIn connections? The key difference is a Twitter account can be set up privately by an individual; a ‘micro-blog’ on which to post tweets. However, unlike Facebook and LinkedIn, the default settings of Twitter are public. The list of followers is therefore public and anyone can freely follow a Twitter user of their choosing.
Does this personal nature change if the employee uses his employer’s name within his username and profile? This is likely to point towards the account having an employment connection. In many cases, it is likely to be the corporate brand that attracts followers, rather than the employee. Indeed, if the tweets are clearly business-related, it could be argued the follower list was developed with a view to promoting the business and driving traffic to the company.
In the case of LinkedIn, it might initially seem harder to see how an employee’s connections could be said to be part of their job. A LinkedIn account is, by its nature, personal to the individual and connections are managed privately. However, in certain industries, such as recruitment, LinkedIn is used as a tool for expanding a business network. The High Court in England considered the retention of LinkedIn connections by an ex-employee in a case involving Hays Recruitment and ordered that he should disclose LinkedIn connections he developed while working with Hays. Hays also sought an undertaking that the ex-employee delete those connections from his account. The principle in this case will perhaps be limited to businesses which actively encourage their employees to build their connections on LinkedIn as a business development tool.
Disputes, however, could be avoided if employers take the following steps:
Manage the corporate Twitter feed through a separate account managed by an authorised user within the business. Employees can be encouraged to disseminate the corporate message by retweeting the firm tweets to their followers .
Clear guidelines should be set out in a company’s social media policy when employees are expected to use social media as a business tool at work.
Contracts of employment should be updated to address the issue of ownership of LinkedIn connections/Twitter followers, especially following termination of employment. This will provide contractual clarity should a dispute arise.
For senior employees or sales staff, restrictive covenants should be updated to address the ease with which an employee can “take” his LinkedIn connections to solicit business post-termination.
Compromise agreements setting out severance terms should also be updated to reflect the removal of company property and the rights in databases created through LinkedIn or Twitter on termination of employment.
Employers should ask themselves from the outset whether they are comfortable allowing employees to use the corporate brand in their Twitter name as this could give rise to ambiguity between personal and/or business use.
• David Morgan is a partner in the employment law team at Burness LLP. He tweets as @DavidMorganLLB



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