Thursday, October 21, 2010

Social Media Update II

The Departing Employee’s Twitter Account:  Ownership and Record Preservation Issues

CNN’s termination of its reporter Rick Sanchez has sparked an interesting discussion over who “owns” Mr. Sanchez’s “ricksanchezcnn” Twitter account.  Venkat Balasubramani at SpamNotes.com has provided the following analysis:  assuming there is no agreement governing the disposition of the account upon termination, most likely Mr. Sanchez would be able to retain the “followers” he has accumulated to date.  However, given that the CNN “brand” is attached to Mr. Sanchez’s Twitter handle, there is little chance “richsanchezcnn” will survive the termination—and yes, changing a Twitter handle without losing accumulated followers is doable.  As for the Tweets themselves, Mr. Balasumbramani notes that they “are probably partially owned by CNN, although this could be complicated by the fact that Sanchez may have mixed in ‘personal’ Tweets and ‘professional’ tweets, and probably did at least some of the Tweeting on his own time.”  Bottom line:  employers would be best served to ensure that any social media policies provide: 

(1) terminated employees immediately cease using employer-sponsored and/or -related social media accounts.  In addition, in the case of CNN and Mr. Sanchez, both parties would appear to have preservation obligations if any of Mr. Sanchez’s Tweets are relevant to any legal claims;

(2) employers must have access to employees’ social media account passwords at all times;

(3) employers must approve any public statements disseminated via an employer-sponsored Twitter account; and

(4) departing employees must “turn over” social media to employer. 

In crafting employment contracts to encompass the preceding, employers ought directly to address the ownership issue, that is, address who is the “account holder.”  Twitter’s “Terms of Service” state that “you,” the “account holder,” retains right to content:

“Your Rights:  You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.”

Employers will also want to be cognizant of covering in social media policies Facebook’s “Fan Pages” and other social media platforms with “following” functions similar to Twitter.

A tip of the hat to Venkat Balasubramani at SpamNotes.com for bringing this to our attention.

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