Does the Employer or Employee Own the Twitter Account?

Do your employees use Twitter to promote your company or its products or services? If so, think about how to keep control over those Twitter accounts if tweeting employees depart.

In case you don’t know how Twitter works, if you have a Twitter account, you can post messages of up to 140 characters. Anyone can read your Twitter postings – your “tweets” – just by searching for your Twitter account at Twitter.com.

Once someone finds you, they can “follow” you, which means they can sign up to see your tweets in their “feed.” Someone’s feed is a constant scroll of the tweets of all of the people that person has chosen to follow, like an email in-box.

When you open a Twitter account, you get a Twitter name – a “handle.” That handle begins with an @ sign. For example, mine’s @JohnBFarmer. People on Twitter will know you by your handle and can send messages to your feed by including your handle in their messages.

Because tweets don’t have to be opened like e-mail, your message can’t be missed (although someone can un-follow you if they tire of you). Salesmen love to have large Twitter followings.

Unfortunately, there are no laws, court cases or Twitter terms setting clear rules for whether a Twitter account belongs to an employer or an employee when the account is used for company purposes. While some cases eventually will be decided, how the cases come out will depend upon their particular facts.

Overall, there are things employers can do to position themselves to win Twitter account control, which means there are opposite things employees can do if they would like to take their Twitter accounts to the next job.

Tips for employers: Some of these might reduce the allure of Twitter marketing, so weigh legal protection against marketing punch.

• The best thing you can do is have your employees sign written employment agreements saying that any Twitter accounts (or other social media accounts) used for company purposes belong to the company, not the employee. Require that all Twitter login information and passwords be disclosed to the company both on demand and at the end of employment. Forbid any “goodbye” tweets or any unauthorized tweets encouraging the reader to follow the poster at a different Twitter handle.
• If this policy isn’t in a signed employment agreement, at least publish it as company policy, such as in an e-mail you save. This might not win the case, but it could help.
• Require that your employees do any tweeting about the company using Twitter handles that use company’s trademarks (company name, product and service names) instead of the individual’s name. For example, use @AcmeCorp rather than @JoeSchmoe. You then probably could force the employee to change his Twitter handle if he manages to keep the Twitter account when leaving the company.
• If you followed the previous tip, federally register your trademarks. This will help establish your trademarks in court or if you need to ask Twitter to terminate the Twitter account of a departed employee.
• Require employees to use company Twitter accounts for company purposes only, not for personal messages.
• Have the picture associated with the Twitter account be your company’s logo rather than a picture of the tweeting employee.
• Of course, have a social media policy about what is appropriate conduct and whether any internal review or approval must occur prior to posting. There are some legal reasons for doing this, but, above all, you want to control your company’s marketing message.

Tips for employees: Employees who want to keep their business-related Twitter accounts will want to do the opposite of the above. In case it isn’t obvious:

• Tweet in your own name, not in your company’s name.
• Mix in some non-company related tweets.
• Use your picture for your Twitter icon.
• Avoid signing an employment agreement that gives your employer ownership over your Twitter and other social media accounts.
• If your employer claims that all Twitter accounts ever used for any business purposes belong to the company, you may need to make a tough call about whether to speak up, hope for the best or change jobs.

by John B. Farmer
Published in the Richmond Times-Dispatch
© 2011 Leading-Edge Law Group, PLC. All rights reserved.