What happens when the employee who set up the company’s LinkedIn account leaves? Or, what happens when your outside marketing firm set up your Facebook page but refuses to give it to you because of a fee dispute?
Before we talk about what to do in these situations, let’s talk briefly about how to avoid these situations. Most social media sites allow you to have more than one administrator. You should have, at all times, at least two trusted employees designated as such. When one of them leaves, or is about to be fired, the remaining administrator changes the passwords to lock out the departing administrator and finds another suitable back up. The same thing works with your outside marketer — make sure someone (preferably two of you) are co-administrators so you can always have access to the social media account.
You can also contractually determine who controls and owns the social media account and its followers.
Thanks, you’re an hour late and I need to access my account.
If you are too late to implement some safeguard, the first advice is the same we give our children – ask nicely. This applies to the departed employee and the social media platforms. Obviously, if you can’t locate the employee or they refuse to give up access, you have to approach the social media networks. The problem is, historically, they are not nearly as concerned about your page as you are and are not quick to act.
For example, Facebook tells you what to do here. The problem is Facebook is notoriously slow to react taking about two weeks to respond. If it is a LinkedIn Group (say company alumni) as opposed to a company profile, you may not be able to take control. With regard to groups, LinkedIn takes the position groups are created by individual members and therefore they will not transfer ownership or control of a group. LinkedIn may help you reach out to the group owner or help you protect copyrights or trademarks, but taking control of a Group can be difficult.
The step of last resort – the lawsuit
The law is not settled in this area and there have only been a couple of high profile cases involving LinkedIn and Twitter which had more to do with who owns the followers and connections.
In the LinkedIn case, Eagle v. Edcomm, the court threw out the Computer Fraud and Abuse Act and Lanham Act claims, but allowed the common law claims of misappropriation, conversion and invasion of privacy claims to continue which are still pending. In the Twitter case, the claims for misappropriation of trade secrets, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage and conversion are proceeding to trial which is expected to take place this week.
It is clear you can sue, but exactly what causes of action apply and the likely result is not yet clear. As a lawyer, we love to blaze new ground. As a client, blazing new legal ground is expensive and dangerous. You should try to avoid it if you can, but know that you can use the courts to seek control of your accounts if you have to.
Special thanks to friends Michelle Price and the MMI Agency for helping me help others with some of these issues recently.