Employers Should Have Policies Addressing Ownership of Social Media Accounts Established for Business Purposes

[author: Beth Zoller, XpertHR Legal Editor]

With the growing popularity of social networking sites and the use of social media as a marketing tool to promote businesses, employers must be careful and make sure that their social media policies adequately address who retains ownership of social media accounts used for business purposes. In Eagle v. Moran, 2012 U.S. Dist. Lexis 143614 (E.D. Pa., October 4, 2012), a Pennsylvania District Court considered the question of who owns a social networking account and content when the account is opened by an employee to carry out the employer's marketing and networking objectives.

In this case, Dr. Eagle was the president of EdComm and established a LinkedIn account to promote EdComm's banking services, and build social and professional relationships. EdComm was later taken over by new owners who eventually terminated Eagle. Shortly after her termination, Eagle could no longer access the LinkedIn account as the password had been changed and the account revised to reflect the name of Eagle's replacement. Eagle sued claiming that her former employer violated the Computer Fraud and Abuse Act and other state and federal laws by taking over her LinkedIn account after her termination. EdComm countered by arguing that it retained ownership of the account because a company policy required employees to create and maintain LinkedIn accounts for business purposes listing EdComm as their employer and that when an employee left the company, it would effectively own the LinkedIn account so it could mine information and incoming traffic so long as it did not steal the former employee's former identity. Further, EdComm employees had assisted Eagle in maintaining the account and had access to the login name and password.

The court held that Eagle had failed to establish a claim under the CFAA because she had failed to prove any actual damages, her claims of lost business were too speculative, she failed to quantify her damages, and her reputation was not damaged. Further, the judge took note of EdComm's policy regarding ownership of the social media account. However, the court held that Eagle was permitted to proceed to trial under various state law claims including misappropriation, identity theft and interference with business relationships.

In light of this decision, if an employer seeks to use social media accounts such as LinkedIn, Twitter or others for business reasons and requires or encourages employees to establish and maintain such accounts for work-related purposes, it is best practice for the employer to be explicit and have a written policy memorializing this. The policy should clearly state that the social media account and all postings are the property of the employer and all information including the account, the login and password should be returned at the end of employment. Employees should be required to acknowledge consent to these terms before creating or accessing business-related social media accounts.