Effective use of social media is now a common way for a company to convey its message. This is particularly true of LinkedIn and many businesses are now actively encouraging their employees to join that network. An employee will be able to build up a fairly substantial customer list by making connections and this is a good way of keeping in touch with people that the business has worked with.
The problem is that anything said or done on LinkedIn is implicitly associated with that person’s employer. This means that employers have much more of an interest in ensuring that the employee is conducting themselves appropriately on the site.
Recently attention has turned to who actually owns an employee’s social media account. In most cases some of their connections will be purely personal, people they know from school or university but others may be potential clients or customers, or existing clients or customers of a company. As such, the distinction between what is owned by the business and what belongs to the employee can become blurred.
Eagle v Edcomm
In this US case Dr Eagle challenged her employer Edcomm, a banking education company, after they prevented her accessing her LinkedIn account and the connections in it. Dr Eagle alleged that she set up a LinkedIn account to “foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships.” Edcomm actively encouraged its employees to use LinkedIn and to list Edcomm as their employer but Dr Eagle alleged that they had an informal policy of ownership of the account should the employee leave employment. There was no written policy governing the use of social networking sites.
Dr Eagle lost her job and her employer locked her out of the account. Dr Eagle’s name on the page was replaced with that of her successor. Anyone accessing Dr Eagle’s page would be taken to the new page showing her successor.
The case came before the Federal Court for Summary Judgement. This is an early stage in proceedings where the bank attempted to have the case thrown out as there was no material issue to try. This decision was limited to the Computer Fraud and Abuse Act (CFAA), which allows for damages where there has been impairment or damage to a computer or computer system, and the Lanham Act which provides a remedy where there has been a misleading representation of fact in relation to goods and services.
Edcomm argued that, as Dr Eagle had not alleged damage that the CFAA could compensate for, this part of the case should not succeed. They also argued that Dr Eagle had failed to show that there was a likelihood of confusion between her and her successor. As such the case based on the Lanham Act should also fail.
The Court accepted Edcomm’s position. Dr Eagle could point to loss of reputation, as she had been unable to reply to her contacts, and loss of business opportunities but the Court found that these losses could not be compensated under the CFAA. It also noted that there was no evidence of confusion and it was clear that contacts would not confuse Dr Eagle with her successor. There was no effort to pass off the new employee as Dr Eagle.
The decision by the Federal Court is not the end of this case. The next stage is the consideration of Dr Eagle’s claim for invasion of privacy, misappropriation and conversion. This decision is likely to shed some light on who owns a LinkedIn account.
The precedent set by this case is limited to US law. It seems to us that the answer to the question of who owns the connections really does depend on the circumstances in which the list of connections has been built up. If it has been done by an individual on their "own initiative and own account" then there is probably little that the company can do. There will still of course be the company's client list, and the company should take steps to protect that as a separate and distinct list.
The alternative scenario is where an employee is given a distinct task of building up connections while an employee. If the employer can point to a clear instruction there is every chance that the courts will regard that particular account as belonging to the company. There are however real and practical difficulties with managing the process of taking the account away from that individual when employment comes to an end. LinkedIn is focused on the individual rather than the corporation, so in reality the account may have to be closed.
A more certain approach?
All of this uncertainty can be overcome with a simple user policy that clearly sets out how an employer expects its employees to engage with social media in general terms and who owns the account should employment end. This creates a formal framework that can be relied upon where necessary.
There is a problem with this approach though. It is likely to come as a real surprise, and a huge disappointment, to many employees if they were to think that the company was going to take away their connections. That is likely to result in deep resentment not only with the former employee but also with current employees.