Who owns your LinkedIn content? As described in my last
blog post, the battle over who owns social media content, and
particularly LinkedIn connections and any other social media "customer" list,
has yet to come. LinkedIn content will likely be where employers and
companies may have a financial motivation to fight for the content, depending
on how the social media content was used in the course of business.
v Morgan et al [an enhanced version of this opinion is available to lexis.com
subscribers] decision came out in March, and is one of the few cases
to date that provides some insight as to where the courts may go on social
media content. This is a Pennsylvania case, but some of the underlying
legal concepts may be applicable in Canada, albeit not as a direct precedent.
For a full review of the facts, see Sara Hutchins Jodka's
summary on the Employer
Law Report blog. For some good analysis about the case, Daniel
Schwartz has discussed the case a couple of times in his blog, Connecticut
Employment Law Blog.
As with most law, the case turned on its particular facts:
Needless to say, Dr. Eagle was ticked. She gained
access to her account within a number of weeks, but only by going through
Dr. Eagle sued her past employer for a long list of
claims, winning on the following:
For most of us mortals, we're simply not important enough
to have any sort of celebrity name that can be misappropriated for any monetary
value. In this case, however, Dr. Eagle remains a leader in her field and
organizations hire her for her unique skills.
The bittersweet twist in this case is that while Dr.
Eagle successfully proved her first three claims, the court held that she had
not established any monetary damages, and was therefore awarded $0.
Although she did prove her point that the company misbehaved very badly,
it is a rather hallow victory.
So who owns social media content? The Eagle
case suggests that the owner of the LinkedIn profile does, even when that owner
expressly directs the company's staff to maintain and develop some of the
The company had unsuccessfully counter-sued Dr. Eagle,
arguing that her LinkedIn connections belonged to the company. Similar to
the types of arguments put forth in Phonedog, those connections are already in
the public domain, making the proprietary claim a bit of a stretch.
This is why social media connections are not simply a
Rolodex to which the employer can claim ownership. Social media
connections/followers/friends are not particularly private, confidential or
even unique. It's a collection of relationships, which may or may not be
directly related to the employer, even if the employer's staff has developed many
of those connections.
We've now seen a move in the law towards recognizing who
may own the content, and in the absence of crystal clear employer policies, it
will likely be the employee.
What remains to be seen is how to commodify content and
relationships. Who cares who owns the content and relationships if they
are legally worth $0. Most of us, however, have a gut feeling the value
is a good deal more than $0. Social media isn't just social - it's
For additional updates, please visit Lisa
Stam's blog, Employment
and Human Rights Law in Canada.
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