Ex-Employees, Social Media Accounts, & Civil Litigation
One of the common areas where questions arise concerning the intersection of business torts and breach of contract has to do with what rights and obligations both employers and employees have when employees leave that employer’s workplace. One specific area where this question arises involves social media accounts that employees have used, including those they have opened themselves and logged into on their own; specifically, to what extent the employee still has control over that account and is allowed to access it even after they leave their job. This may be the case if that employee has built up followers and wants to use that account to draw a following to a different product or business. In this case, if, for example, the Twitter handle is changed, the former employer may choose to sue over access to that account.
Courts really have not created a bright line test when it comes to this issue. Still, when it comes to questions over who owns the account, it has been made clear at least that the former employee does not definitively own the account just because they controlled the individual registration and login.
Determining Control of Account
In general, the courts will look to the following factors to answer this question:
- Does an employee-employer agreement exist that speaks to this issue specifically
- What name(s) are referenced in the social media account itself?
- Has the account been used solely for business or personal use?
- Did that employee specifically open the account or did they inherit it from another employee?
- Was the employee instructed by the employer to create the account?
- Did any other employees have access to the account?
The best way to avoid this is for employers and employees to come to an agreement beforehand. so that it is unambiguous. Some employers will also require that the employee write down all of the accounts that they create, as well as all the logins for the accounts.
For employees who want to make sure that they can take any social media accounts with them, they should:
- Make sure they use personal name, picture, information, etc. associated with the account and not any logos of the business
- Make sure at least some of the posts are personal and not just business-related
- Post in the account outside of business hours
- Keep personal usernames and passwords to yourself
- Include a disclaimer on the account, such as “these views only reflect the opinion of XYZ”
Columbus, Ohio Business Torts & Breach of Contract Attorneys
If you have any questions about business-employer agreements with respect to breach and tort claims, contact our Columbus business torts attorneys at the Kohl & Cook Law Firm LLC today to find out how we can provide you with assistance.