While there are considerable benefits of using social media, in this bulletin we look at how businesses can ensure that they protect themselves legally to ensure that they are able to benefit from the value created on social media, and that this is not lost to contractors or employees.
There are various Intellectual Property (IP) rights which exist in social media, for example:
In our bulletin on 29th November 2017, we discussed the ownership of IP rights that are created by employees and contractors. These rules apply to any IP that is created, regardless of whether that content is created on social media or otherwise.
So, for example if you hire a freelancer to create a corporate video for use on social media, the freelancer will own the copyright in that video, unless your contract with them specifically assigns the rights to you.
It is also important to understand the terms and conditions of the social media platform where your content is placed. Most social media platforms will allow ownership of the content to remain with you, but they will obtain wide rights under licence to use your content for their own purposes, including for commercial gain.
In recent years, a common issue for businesses has been in relation to the ownership and goodwill derived to its business from Facebook, LinkedIn and Twitter by individuals engaged within the business.
Many companies face problems when an individual leaves their business as they may be doing so with valuable customer contacts, closely related to the company, stored on their LinkedIn or Twitter accounts, which can later be used by them to approach the company's business customers.
The law in this area can be uncertain, especially when an employee has mixed personal and professional use of social media accounts or where customer contact data has been built up from a previous employment and brought over to your business. Key considerations will be whether the account belonged to the individual before they joined your business, and the association between the account (for example the account name/handle) and your brand. It is likely that a business will have stronger claims for ownership where accounts and handles are set up by the business and the accounts are predominantly used for promotion of the business rather than for personal use.
LinkedIn's terms and conditions provide that the individual owns their account. However, the legal position on who owns contacts made is uncertain, although consideration will be given to whether contacts were made during the course of an individual's employment by the business, and/or involve an element of confidentiality.
Despite this uncertainty, there are steps which you, as an employer, can take to safeguard your IP on LinkedIn and Twitter. The key to protecting client contact data, such as LinkedIn connections or Twitter followers, is to deal with the issue on commencement of the employee/contractor relationship, and not wait until someone leaves the business (at which point arguments will ensue).
Particularly where you are hiring an employee or contractor to undertake a specific role in managing social media accounts, build suitable protections into your contract. Be clear on what happens to the accounts when that individual leaves, and who owns the content. Concerns around key employees leaving the business and their use of social media "followers" may also be addressed through tailored restrictive covenants.
Consider your policy on setting up new accounts and who has access to passwords and usernames, to avoid being unable to access these when key individuals leave the business.
Your company social media policy should make it clear:
IP ownership on social media is an important issue for a lot of businesses. The effective protection of IP on social media will hinge heavily on how robust your contracts and company social media policy is, and how effectively you have protected the IP created in the first instance.
Through our strategic partnership with Ward Hadaway law firm, Ward Hadaway have a team of Intellectual Property experts who have in-depth knowledge and experience of advising on protecting IP rights on social media. They can help you understand your current intellectual property regime and provide advice on protecting the ownership of your IP on social media.
This article has been drafted on esphr’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm are one of esphr’s strategic legal advisory partners and provide certain services to our customers through a range of different Legal and HR support services offered by ourselves to the Corporate market. The content of this article does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.