With the explosion in the use of social media platforms in everyday life, and the blurring of the divide between personal and work life, the issue of who own a social media account seems to be an increasingly contentious issue, especially between employees and employers. In this regard, a few basic, common sense questions have been used by the Courts in order to assess who own a social media account.
Most recently, in Eagle v Morgan, 2013 US Dist LEXIS 34220, the following elements were used to assess who between an employee and employer owned a LinkedIn account:
- Who is signing the user agreement with the social media platform? User agreements commonly provide that any given account belongs to the person signing it, even if used for an employer’s purpose;
- Who is paying for the account? The fact that a person has expanded time and money is a relevant factor in considering ownership of social media account;
- Does the employer has a specific policy about use of a social media for internet or/and external purposes? The absence of an internal policy is a factor playing against ownership of a social media account by anyone else but the account holder;
An organization or individual other than the individual who is considered as being the rightful owner who uses that individual’s social media account for commercial and/or advertising purposes without the owner’s consent opens itself to claims of, among others, misappropriation of personality and invasion of privacy. Where damages can be proven, a claim for tortious interference may also have some merit. Examples of damages might include, for instance, loss of opportunity of a contract, client, or deal that could have been attained through a social media account. Where malice is involved, a claim for punitive damages could also have some merit.
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