Reasons for Caution When Demanding Separated Employees Turn Over Control of Employee-Operated Social Media Accounts

We wrote recently about whether a Twitter account could be considered the property of and a trade secret of the company that may have created it. That is the current dispute between the owners of the Roanoke Times media outlet and sports reporter Andy Bitter. See Washington Post report here.

As we discussed, the answer is probably “yes” and there is support for that idea in California case law. In this article we take a moment to step back and give this matter more thought. Some business owners have a reflective insistence that social media accounts are “mine” or “ours”, particularly if the accounts have some sort of “value” in terms of followers “likes”, and other positive attributes. But a cautious — at least thoughtful — approach is in order since such accounts might have negative attributes, too.

The reason for the caution flags is that social media accounts cannot be scrubbed clean. Everything is permanent on the internet — no matter how long ago the text was texted or the tweet was tweeted. Moreover, in today’s charged political and moral environment, what is innocuous today might be the source of great consternation and consumer outrage a year from now or 10 years from now. With respect to an employee-operated social media account, there is a downside risk that something was tweeted or posted that causes damage to the reputation of your business in the future. A related issue is the use of morality clauses in employment contracts, which we discussed here.

Because social media accounts cannot be scrubbed clean, it is time to rethink termination and transfer strategies with respect to employee-operated accounts (there is less concern with management-operated accounts). In rethinking strategies, we must first rethink what a social media account is. Most of us think of the account as one unitary “thing.” But, in fact, a social media account is a bundle of things that can be separated and teased apart. Some of those things, like the list of followers, are “good,” while some are “bad,” such as your former employee’s bad jokes, snarky jabs, and/or midnight ramblings.

The analogy that we want to propose is a stock purchase vs. an asset purchase. When you are considering buying a business, you can buy the whole business, taking the good and the bad. That is a stock purchase. The other option is to buy only the “good” pieces of the business that you want. That is an asset purchase. With a stock purchase, you end up with the debts and liabilities of the old company. With an asset purchase, you avoid the debts and liabilities.

With this analogy in mind, rather than seize and demand full control of an employee-operated social media account (stock purchase) it might be more prudent to demand/negotiate access to the “good” parts of the account and leave the remainder for the former employee (asset purchase). An “asset purchase” leaves all the “debts and liabilities” with the former employee.

San Diego Corporate Law: Auditing and Decommissioning Old Accounts

For the foregoing reasons, business owners should also consider two additional policies with respect to social media accounts – ongoing audits of current accounts and a practice of decommissioning former-employee accounts even if full control of those accounts is given over when the employee separates. Over a six-month period of time, for example, customers and users and followers of that account can be redirected to the new account(s). This strategy limits the potential for latent and dormant texts, posts, and comments to cause disruption and injury to your business in the future.

Contact San Diego Corporate Law

For more information, contact experienced and skilled business attorney Michael Leonard, Esq. at San Diego Corporate Law. San Diego Corporate Law focuses on legal services for San Diego businesses and can help with your employment contracts, employee handbooks, and other questions your business may have. Contact Mr. Leonard by email or by calling (858) 483-9200.

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