Last week I read an article on BusinessWeek.com that presented the results of a survey of c-level executives regarding employees and social networks. According to the survey from Deloitte, 60% of c-level executives interviewed believe they have a right to know how their employees represent themselves and their companies on social networking sites. On the flip side, 53% of employees surveyed believe their activities on social networking sites should be of no concern to employers. So, are the executives corporate lurkers, protective business owners, authoritative leaders, or just clueless about social networking?
Unfortunately, social networking is so new, that there isn’t a solid answer yet. In addition, and more importantly, there’s no legal precedent, which means this can be a very messy situation. But hold on, is there legal precedent? More on that soon. By the way, the legal implications of social networking and ownership of accounts has become increasingly hot over the past year or so. You can read great posts by Beth Harte and John Jantsch about the subject, and both yielded some very interesting comments. You can tell this topic hits a nerve for both employees and executives (and is especially touchy for those of us in between who help companies with social media strategy).
As I’ve been helping companies with their online marketing efforts, developing social media strategies has obviously become an increasingly important element. And as I’ve been participating in and evangelizing Twitter, some core questions keep coming up. Employees often ask how to best connect with a target audience, how to build a following, what to tweet, Twitter etiquette, etc. But when speaking with executives, the conversation usually moves in another direction. “Glenn, who owns the accounts we are setting up?” That’s when I grab a conference room with a white board and start explaining the 500 shades of grey that are associated with my response.
It’s just not an easy answer, right? For example, was the account set up while working for the organization or was it already established? What role does that employee have in the company? Is that person focused on social media marketing, community management, or do they focus on something else unrelated to marketing? Are they tweeting about the company and industry? The white board diagram I create typically looks like a grapevine of connections, risks, and potential legal pitfalls. Subsequently, I can’t wait to erase it after the conversation.
But is the situation really that unclear? Is there legal precedent? Are we just trying to convince ourselves that our Twitter accounts are our own? I didn’t have the answers, so I enlisted the help of a lawyer to try and answer some of these questions. That’s right, I walked right into the lion’s den. That’s how I roll. Read on.
A Lawyer I Actually Like…
There aren’t many people in business that get up in the morning and say, “I can’t wait for that meeting with Legal today!” I understand why, but I’ve always been heavily interested in business law. And whether you like it or not, lawyers are a necessary evil in business. Those of you who have started your own businesses understand this already, and for those of you thinking about launching a business, please read the first part of this sentence again. Although it will cost you money, time, and aggravation, having the right lawyer assisting you as you grow your business can save you 10x the amount in the long term. And if you look past the strong-minded views, excessive talking, and getting billed for faxes, you can actually learn a lot from lawyers.
While thinking about Twitter ownership, I decided to call Mike Pisauro, a lawyer I know from Princeton, NJ. Mike focuses heavily on business law and commercial litigation. I have always found him to be a wealth of legal knowledge, and it doesn’t hurt that he’s a cool guy. And since Mike is on Twitter and learning more about online marketing, I think he provides a solid foundation in how law and social networking play together (or don’t play together depending on your perspective).
I brought up several situations to Mike that are happening today with regard to Twitter, and I asked him to analyze each situation to see who owns the Twitter account (from a legal perspective). I’ll be honest, sometimes I didn’t like what he had to say. But that’s why you need a lawyer! They will give you real-world advice based on real-world cases. That’s versus the “I’m above the law because I have thousands of followers” answer. There’s a big difference between the two, especially since many judges probably think Twitter is that sound their pacemaker emits when they have too much coffee.
My Take On Who Owns Your Twitter Account:
Based on what I do for a living, I’m forced to look at this situation from a few perspectives. One from being an avid online marketer, blogger, and Twitter user. I’m a huge believer in how powerful Twitter can be for connecting with a targeted audience. I also know how powerful blogging and Twitter can be for getting the word out about a specific subject (and how that can impact natural search rankings). And yes, I’m also that guy talking to people on the plane, in cabs, on the train, and at Starbucks about the power of Twitter. But, I also have to look at Twitter from the perspective of the executives I help. Twitter is so new to them, which leads to a lot of confusion about the subject. Actually, some barely know what Twitter is, how it can be used, and more importantly for people like us, how it can impact the bottom line. And yes, it absolutely can do that for those of you not convinced yet. But as I build strategies that incorporate Twitter, almost all of the c-level executives I have helped ask the question, “Who owns the Twitter account?”
So, to help provide a better answer than, “there are many shades of grey…” I decided to list some common scenarios. I’ll provide my take and then Mike will dissect each one from a legal perspective.
1. Grandfathered Twitter Accounts
The account has been set up for a while and the employee will help the company on Twitter occasionally. The account already has Twitter Equity (followers, influence, etc.)
In this scenario, the employee already has a Twitter account with a following before he started working for the company. The employee has not been hired as the social media marketing manager or community manager, but he will help get the word out about company-related initiatives from time to time. The core point being that Twitter is not part of the job description. For example, Joe Employee has 3400 followers and his account is over two years old. He uses his account to tweet about a number of subjects, one including the industry he’s in. But, he was not hired to do this for the company and it’s not his primary responsibility. To me, this account is Joe’s and the company he works for has no right to claim ownership of his account or his followers. If he keeps going down the path of growing that account, and it has no direct connection to the company, then he owns it.
Mike: Glenn, all of my answers must begin with a couple of caveats (what do you expect from a lawyer?). From the initial get go no can own another person so no one can own followers (again sometimes we must state the overly obvious). Now that is out of the way, the question is really two fold. First, who retains the right to maintain or use the list of followers? Second, who owns the content of the tweets?
The answers, as in most things coming from lawyers, are it depends. First, each state has its own laws which may be subtly different or vastly different from one another. So what may occur in New Jersey may not be the result that would occur in Colorado. Second, who owns what will be an issue that will be several years if not a decade or more in the resolving. Trial courts in each state will begin to hear cases, those cases will then be appealed to an appellate court and some of those decisions will be appealed to the state’s Supreme Court. All of that will take years, in the meantime, the definitive answer to who owns what will be up for grabs. Third, the first place to look at in determining how all of this will end up, will eventually be, is to look at the employment agreement or employee handbook for the company. As long as the contract/handbook is not against public policy and is clear, the deal will be enforced (for the most part). The most productive answer would be for all employees and employers to deal with the issue up front in a contract as you would for many traditional employment issues. This can help identify who can retain the followers and the content of the tweets.
With all of the caveats above, in this scenario, with a possible exception, the twitter account is his and will remain his after he leaves his job, assuming that he does not use company time to tweet (more on this aspect below). An interesting and related question is what can the employer do to control, prevent or otherwise oversee the employee’s tweets about the company, but that is an issue for another day.
2. Twitter Account Already Established, But Employee Has Agreed That Twitter Will Be Part Of His Job
The account already has Twitter Equity, but the employee has agreed to help the company by growing a targeted following and helping get the word out about company initiatives, products, services, etc.
This is similar to what was listed above, other than the employee agreed to help the company by tweeting relevant information and connecting with targeted Twitter users. It’s part of the job description. To me, there’s not a clear answer for this one…it’s one of the shades of grey I mentioned earlier. But, I’ll throw something out there. I’m a believer that you can’t slice up your twitter followers from an ownership standpoint (since some people have mentioned this approach).
For example, Jane Employee will own the 650 followers she had before starting, but the company will own any additional followers she gains while she’s at the company. That’s ridiculous to me (and won’t work by the way, especially if the account is tied to an individual versus a company account.) Imagine that you receive a message one morning, “Hi Glenn, you used to follow Jane, but she left the company, so you now follow Jill.” Huh? So, to me, there should be an agreement established prior to Jane engaging in Twitter activity for the company. I think social networking or Twitter agreements will become more prevalent in the near future. The agreement would lay the ground rules for who owns the account and list any arrangements the employee may have with their employer regarding their social networking accounts and blogs. So to me, the answer lies in how the employee structures their social networking employee agreement (SNEA). That’s right, I just made up the acronym!
Mike: Again, first take a look at whether the employment agreement or employee handbook addresses Twitter or blogs. If the employment agreement/employee handbook addresses Twitter or blogging than the agreement would usually control. Assuming that these documents do not discuss the issues, than a Court will look at two separate issues: who owns the “followers” and who owns the content of the tweets. These questions would be examined under laws dealing with trade secrets and intellectual property.
I think employers will be tempted to look at followers as customers. Employers like to treat customer lists as trade secrets and will go to lengths to protect those lists from former employees. In NJ, a trade secret is defined to include compilations of information used in a company’s business that gives that company a possible advantage over its competitors and which is not generally known to the general public or in the industry. The employer would argue that any follower that began to follow the employee after the employment began is the employer’s follower. Once the employee leaves that employee must “block” those followers. The company would have to show that it developed this list of followers. I could envision a scenario where the employee only tweeted about the employer during their employment. It is much more likely that the employee tweeted about the company as well as a myriad of other things. I could also envision a scenario where other company employees encouraged their followers to also follow this employee as part of a corporate social marketing strategy. Both of these scenarios would help establish that the company compiled the list of followers; so could meet the requirement that it compiled information for use in its business.
The really tough element of trade secret law is that the compilation of information cannot be known to the general public or to the particular industry. This is an element that I do not think an employer could satisfy. With Twitter, follower’s information is not secret. Anyone who has a twitter account, whether they follow the employee or not, can determine who is following that employee. Since the information is not secret but theoretically open to the entire world there is no trade secret to protect.
Assuming an employer could show that the followers are a protected trade secret, I would disagree with you that you can’t slice up followers. It should be fairly easy to set up a list of pre-employment followers. Twitter sends you an email every time someone new signs up so maintaining those emails (there should an email retention policy) should not be too hard. In pre-twitter days, Employees joining companies bring with them contacts that they use to benefit their employers, but when they leave those employers, they take with them those contacts. I see no reason why it should not work with Twitter followers.
While it is not likely that an employer could control the followers, the employer would likely have a claim to all of the tweets that employee made about the company. Because part of the job description was that the employee would tweet about the company, under Federal copyright law, those tweets about the company would likely be considered “works for hire” and remain the property of the employer.
Again the short answer is likely that the followers are the employees but the tweets are the company’s property.
3. Twitter Accounts Set Up While An Employee Is Working At A Company
And they will help the company via that Twitter account.
This one is a little clearer to me. The person did not have an account prior to starting the job, and signed up for the account after they joined the company. In addition, they joined Twitter because their employer asked them to do so in order to help the company. I lean towards thinking this account is owned by the employer, unless an employee agreement (SNEA) states otherwise. There’s not much more to say for this one. Let’s move on.
Mike: Glenn, I think you are probably right especially if the employee only used the Twitter account for their employer’s business. Also, the actual content of employer related tweets would be company property. It may get a little murkier if the employee mixed business with pleasure in their tweets. The best policy would be for the company to have the details of who owns the Twitter account and when and where the tweets can occur and the content of those tweets. i.e. the employee should be prohibited from tweeting non-business related material. It may also be better for the company to set up a corporate Twitter account and assign that to one or more employees. This way when an employee leaves the account stays.
4. The Employee Is The Official Social Media Marketer For The Company
But the account already has Twitter equity before starting the job. This is where the employee will be the official social media marketer for a company, but the account was set up well in advance of starting the job. In addition, the employee had already built up a large and loyal following (and that’s part of the reason they were hired).
Let’s say you’re a Twitter star. You have 25,000 followers, you’re a leader in your respective industry, and you’ve been labeled an influencer. Now, let’s say a leading company in your industry hires you (partly based on the power of your Twitter account). You will be the official social media marketer for the company and have been tasked with making a big impact Twitter-wise. Cool, it’s right up your alley, but when your stint is over at the company, who owns the account? To me, this is your account. You were the one who built up the serious following, you increased your Twitter equity, and you’re the influencer. The company is hiring you to leverage your account, not to buy the account. That said, this has to be part of an employee agreement (SNEA). Your lawyer should flesh out a key part of the agreement that explains ownership of the Twitter account and other social networking accounts.
A quick side note: I think the Twitter user in this case has more power here than one might initially think. I’m not sure that any company wants to go toe to toe with a social networking star that has built up a loyal army of followers. I can’t even imagine the backlash the company would face PR-wise if they tried to “steal” someone’s Twitter account. That’s just my opinion, though.
Mike: I think this employee is very similar to employee #2 and the answer would remain the same. The best answer is to get it all in writing up front. The second best answer, is that a Court would after several years of litigation decide that the Twitter account remains the property of the employee, the twitter followers that joined during the employment are likely to be the employee’s, but the content of the tweets are the property of the company.
While no one would want a public relations nightmare, a Court could issue a restraining order against the employee from tweeting about the dispute fairly quickly. So while the cat may be out of the bag for a day or two, a Court order would prohibit the employee from issuing any more tweets about the employer and their dispute until the entire case is resolved by the Courts.
5. The Employee Is The Official Social Media Marketer And Has Set Up The Account As Part Of The Marketing Effort.
There’s obviously no Twitter Equity associated with the account yet.
This is a much different situation than the one listed above. If an employee has no following, no account, and no Twitter Equity, then he doesn’t have much leverage with an employer with regards to account ownership. Hey, that’s life. If your employer is willing to let you be the face of the company in the social networking space, and you are doing that on their time and dime, then it’s their account. And since the employee doesn’t have the leverage of someone who already has a loyal following, there probably won’t be much negotiating if you bring up an agreement. Imagine trying to negotiate a higher salary before you’ve proven what you can do… It’s the same thing.
Mike: I think this situation is very similar to employee scenario #3. The account, which probably should have been set up in the company’s name, is the company’s property. The tweets are the company’s property.
There you have it, my analysis of Twitter ownership and Twitter Equity from the perspective of an online marketing strategist and then Mike’s legal analysis of each situation. Who do you agree with?
Wrapping up this sidebar…
As you can see, this can be a messy subject. I think the bottom line is that Legal needs to be involved from the beginning with standard employee agreements, and definitely should be involved when dedicated social media marketers are hired. To be clear, I completely understand a Twitter user’s perspective, but I also understand a c-level executive’s perspective who is trying to run and grow a company. If you put yourself in their situation, you can see how Twitter, and social networking in general, can be viewed as the Wild West. There’s no easy answer, but that doesn’t mean you have to sit back and wait for new cases to unfold before you act! Be smart, do your homework, and yes, speak with a lawyer. Some aren’t as bad as you think they are (like Mike). And, you may actually learn something.
What do you think? Am I right, is Mike right, or are you right? I’d love to hear your thoughts. Fire away!
Glenn’s Disclaimer: Glenn Gabe is not responsible for any pain, suffering, anger, frustration, confusion, happiness, sadness, or bewilderment that this post may have caused. Glenn is also not responsible for loss of Twitter accounts, Twitter spamming, or loss of Twitter Equity. Any lack of attention you get on Twitter is not the responsibility of Glenn, Mike, Biz Stone, Evan Williams, or any person at . Glenn is also not responsible for false feelings of Twitter power, Twitter influence, or social networking stardom, when in reality you only have 15 followers, but are following 4000 people. Glenn makes no claims that Twitter will be around in a year, or that it will be called Google, Facebook, or some version of i-{something} if acquired by Apple. To be clear, you are not Oprah, Ashton Kutcher, Ellen, Martha Stewart, or Barack Obama and the thought that you will gain hundreds of thousands of followers quickly is absurd (legally).
Mike’s Disclaimer (the real one): Mike Pisauro is not providing any legal advice with the above post and the information above is for educational purposes. Your particular situation is unique and would require a review of all the facts unique to your situation and a review of the law in your jurisdiction. Just because this information may be interesting or entertaining does not create an attorney client relationship between you and Mike Pisauro or Frascella & Pisauro, LLC. Mike Pisauro is licensed to practice in New Jersey and Pennsylvania only. To determine how best to protect your interest you should consultant an attorney in jurisdiction.
Glenn Gabe is an online marketing strategist and focuses heavily on SEO, SEM, Social Media Marketing, Viral Marketing and Web Analytics. You can read more of Glenn’s posts on his blog, The Internet Marketing Driver and you can follow him on Twitter to keep up with his latest projects, news, and updates.
