Social media like Facebook and Twitter have added yet another dynamic to the employer-employee relationship. Many businesses and even non-profit organizations encourage, if not require, their employees to use social media to promote the interests of the business or organization. For example, news agencies like CNN have incorporated social media components to their shows and promote these social media sites and contributions using the names of their anchors and reporters. Wolf Blitzer and Anderson Cooper often ask the viewers of their respective shows to contribute to discussion of the issues of the day via Twitter. However, if the employer-employee relationship is terminated, legal disputes can arise to determine the ownership of social media accounts which were created and used by the employee but intended for the benefit of the business.
One famous and relatively recent case was that of former CNN anchor Rick Sanchez. Sanchez’s employment with CNN was terminated, leaving his Twitter account as cause for dispute. A judge ultimately ruled that the Twitter account belonged to Sanchez and not to his former employer, CNN, but ordered the account’s name be changed so that it would no longer include “CNN” in the title.
The importance of such accounts is highlighted in the worlds of news and marketing but also encompasses serious issues in other employment fields. When the “followers” on Twitter or the “friends” on Facebook represent a potential client base and the employee continues to work in the same line of business as the past employer, trade secrets and non-competition covenants may play a big part as to who owns the social media accounts and what kind of information can be disseminated through them. Others things to consider are: who created the account in the first place, who manages the day-to-day activities of the account, whose name appears on the account, and the primary purpose of the account.
The interests of the employer in these kinds of disputes include the integrity of its business’ image and the loss of former or potential clients. On the other hand, the employee’s interests include personal privacy and First Amendment rights if he or she wins ownership of the account. As with many areas of employment law, the more explicit and detailed an employment agreement is on the issue of social media, the easier it will be to settle these disputes. However, the rapid pace at which social media has entered some fields of business has not allowed employers or employees to include such issues in employment agreements. The result is an onslaught of litigation in a field that has not been fully explored in employment or property law.
In addition, besides the value that the social media accounts may hold in a business or economic sense, the ownership of these accounts may have an even more significant impact in the cost of litigating discovery motions prior to trial in employment discrimination cases. These would be particularly important in disparate treatment cases where an old posting, email, or recording can shed tremendous light onto the existence of discriminatory intent by an employer.
You can access an article detailing recent cases on the matter here.