Law Times

Law Times • November 12, 2012 Who owns employees' social media accounts? FOCUS E BY MICHAEL McKIERNAN Law Times and control of social media ac- counts operated by employees. A small number of U.S. and mployment lawyers say Canadian employers are behind the curve when it comes to the ownership British decisions have touched on the issue and although Ca- nadian courts have yet to weigh in, lawyers say the increasingly blurred lines between profes- sional and personal activities on social media outlets mean dis- putes are inevitable. Allison Greene, co-founder of Karimjee Greene LLP, says some employers take a piecemeal ap- proach by dealing with disputes as they arise, usually at the termi- nation of employment. She says it' inserting clauses into severance agreements that require former employees to update their Linke- dIn profiles to reflect the fact that their employment with the com- pany has ended. But she' s not unusual to see employers turning their minds to social me- dia much earlier in the process. "I think that because the law is d rather see employers so unclear, employers should be thinking about developing poli- cies at the front end in the same way they deal with intellectual property issues," says Greene. "That way, when the relation- Erin Kuzz, co-founder of Sher- rard Kuzz LLP, says it's particularly " case in California pits Noah Kravitz against his former em- ployer, news web site phonedog. com. When Kravitz sued over his share of advertising revenue, the company countersued with a claim asserting that it owned Kravitz' Twitter account and the 17,000 followers amassed dur- ing his employment. Kravitz set up the account An ongoing high-profile out and they raise more questions than answer, while he worked with PhoneDog but removed a reference to the company in his Twitter handle when they parted ways. In Febru- ary, Kravitz suffered a blow when a judge refused a motion to dis- miss PhoneDog' also tackled the issue of ownership of a LinkedIn account in an action brought by Linda Eagle, founder of a firm called Edcomm. Eagle set up her LinkedIn account follow- ing a suggestion by the firm' A court in Pennsylvania has s case. executive officer who encouraged all employees to create profiles listing Edcomm as their employer. But when the company changed hands and Eagle lost her job, the company used a copy of the pass- word to replace her details with those of her successor. Eagle claimed her former em- ployer's move to access the ac- s chief ship ends, people know where they stand. important to set the rules ahead of time in the employment contract where social media use is a signifi- cant part of the job description. "For example, if they're asked to lawsuit fell apart aſter the employ- er brought a successful motion for summary judgment. In Britain, another court deci- s ment lawyer with Whitten & Lu- blin, says a good rule of thumb for employers and workers states that if the individual employee created and maintained the ac- count for personal use, then it belongs to them. "If it was cre- ated for the employer and on the employer' Daniel Lublin, an employ- " she says. sources, then the employer can claim ownership. rying existing social media ac- counts with them into new jobs and an increasing number of em- ployers seeking social media en- gagement, the grey area between those extremes is growing larger. Lublin says it' But with more people car- s time with their re- " Employers should pick their battles when claiming ownership over social media accounts, says Allison Greene. for employees with a significant public profile, such as journalists with large media organizations, s a particular issue who owe at least part of their fol- lowing to their association with their employer. He says more explicit employment contracts would help clear the confusion. "Most haven't gotten around to draſting contracts that say what Let us open count was illegal and impaired her ability to find new work by deny- ing her access to contacts. How- ever, in October, much of Eagle' right door for you the start a Twitter account and tweet things related to the employer, then you don't want to be in a situ- ation where they get a decent fol- lowing and then they can take that account and go with it to a com- petitor, who owns not only the technol- ogy but also the fruits of it. . . . Our job is all about trying to anticipate how things could go wrong and close loops before they appear. "Make sure it's abundantly clear " says Kuzz. " sion favoured the employers in a fight over LinkedIn contacts. In that case, Mark Ions, a recruit- ment consultant, had to turn over business contacts accumu- lated on his personal page aſter he allegedly used the account to approach clients for a rival com- pany he set up shortly before re- signing from his employer. Anita Fineberg, a Toronto privacy lawyer, says it's unwise to read too much into the few decisions that touch on social media ownership. "These cases are so fact-specif- ic, I'm not sure there's many clear lessons at the moment. . . . Some- times with these issues, cases come Kuretzky_LT_July11_11.indd 1 CONDUCTING EFFECTIVE We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 7/5/11 3:32:01 PM belongs to who," says Lublin. adds yet another wrinkle to the question of ownership in cases of mixed personal and professional use of an account. If employ- ees are updating their accounts and interacting with contacts outside work hours without an expectation that the company will pay them for it, there' Greene says overtime pay ownership claim, she says. Greene says employers s should pick their battles since there' to claiming ownership over accounts and contacts. "If you try to do that, you risk alienating a new generation who've grown up used to doing a lot of social media," she says. LT doubt as to whether they were devoting employer resources and time to those activities. That could strengthen the individual' s a potential downside s some PAGE 11 WORKPLACE INVESTIGATIONS: WHEN IGNORANCE ISN'T BLISS COURSE HIGHLIGHTS • Preparing for an Investigation • Impact of Social Media • Conducting Workplace Investigations • Developing Effective Interview Skills • Key Issues in Different Investigations • Reaching Conclusions and Report Writing For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca Untitled-2 1 www.lawtimesnews.com 12-11-05 10:22 AM Toronto, Dec. 10th, 2012 In today's environment, conducting effective workplace investigations is essential. An effective investigation reduces the chance of subsequent litigation and increases the prospect for success should litigation result. 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