Most companies don’t give much thought to how employees are using their Twitter or Instagram accounts, Pinterest board or YouTube channel. These days, it’s assumed everyone is using social media for all the usual things – sharing news, watching videos and staying connected with friends and family. After all, 78% of online Americans are active users of at least one platform – and that number continues to grow.
But on Facebook, it’s more complicated. There are two kinds of profiles: Personal pages (which the vast majority are) — and ‘Fan’ or brand pages (approx. 50 million total). Fan pages are operated by businesses to showcase their products and by public figures to grow their brands. For those in a high visibility role, like a news anchor or professional athlete, chances are that the Facebook fan page serves a dual purpose: To grow the business audience and build a personal brand. And therein lies the rub.
Why a Facebook fan page is valuable
You can tell if you’re on a personal page or a fan page by noting if there are ‘friends’ or ‘page likes.’ Average people have ‘friends’ and brands collect ‘page likes. There are clear benefits to having a fan page in that you get analytics on your audience and activity. People with fan pages are also granted an unlimited number of connections. The average fan page has about 40,000 page likes, while a personal page is capped at 5,000 friends.
Companies fight for ownership
KloboMedia has heard more stories lately of people being asked to surrender their Facebook fan pages when they leave their jobs. It doesn’t matter if they alone managed all aspects of that page. The boss considers the page company property and forces the employees to leave the page behind, along with keys and the company ID. Facebook gives businesses the option to merge related fan pages, and those page likes have value.
Experts weigh in
What have the courts said about ownership of a Facebook page? Is the owner the person who created the account? Posted all the content? Served as a page admin but possibly did little else?
Karen Conti, ContiLaw
I reached out to several attorneys to get opinions, including one of Chicago’s best known litigators, Karen Conti of ContiLaw, who told me employment law is generally on the side of business because, as a rule, anything created during work hours belongs to the employer. “These laws termed “work for hire” are based upon the idea is that if the employer pays an employee to work, it owns the work product. These laws are applied in the case of inventions created during work hours and could likewise be applied to Facebook fan pages.” But Conti adds that circumstances matter. “A judge’s ruling could turn on whether the page is more of a personal page or employer page and whether it was created during work hours and as part of the employee’s job.”
Tricia Meyer, Meyer Law
Tricia Meyer is founder of Meyer Law, which specializes in helping technology entrepreneurs. Meyer agrees that the business has the stronger case here, unless there is something in writing to the contrary. “In the event the fan page is for the business (even if the individual is the only one that posts on the fan page), there is the possibility that the business can choose to have the fan page migrated to the business and it may be within its rights.” Meyer points to court cases in which employees have sued former employers over the ownership of Facebook pages, but “such cases stated that unless the employee can prove that the “likes” are owned by the employee, then the business may be within its rights to migrate the fan page.”
Matthew Rossetti, Sentient Law
States including Illinois, California, Michigan and Maryland have passed laws preventing companies from requiring prospective and current workers to turn over personal social media user names or passwords. However, professional accounts are a different story. Business law specialist and attorney Matthew Rossetti of Sentient Law says it’s in everyone’s interest that the company spell out its intent. “On the employer side, if you’re going to pay to market an individual employee (like a news anchor) I would make absolutely certain that the employee’s employment contract explicitly states that those accounts are owned by the company.” Rossetti, who also advises KloboMedia, notes that the POTUS Twitter account will soon be operated by President-elect Trump because the account is owned by the office, not President Obama.
Written agreements should be the goal
Rossetti adds that, like anything else, Facebook page ownership can and should be negotiated. Meyer agrees, “There are a lot of nuances of various social media platforms that will likely be litigated in the future, so one way to prevent this from happening is to make sure that there is a clear written agreement with respect to ownership of the content and pages and any administrative rights or access that the company may have.”
For employees that work without a contract, firms may still be in position to exercise ownership of social accounts managed during the workday. Conti predicts, “We are going to see employers include protective language in their employment contracts and employee handbooks, making it a written policy that social media pages are the property of the employer. There is no good reason why such an agreement would not be enforceable.”