Who Owns "Publicly Available" Social Media Content?

 Who owns your LinkedIn connections? I’ve blogged about the ownership of social media content a few times already (here, here, and here) and I continue to believe that the real battle will be over connections made in the course of business. 

Are these connections your extended network that you brought into the employment relationship that you can take with you when you leave?  Or are they the employer’s customer list in which the employer has a proprietary interest?

Traditionally, employers owned the customer list, and most employers will likely continue to believe that for some time to come. But increasingly, we are seeing individuals demand ownership over their own online social network.

The Canadian Eagle Case

This is the core of the US cases, Eagle (LinkedIn) and PhoneDog Noah (Twitter). There is also some Ontario law that pushes forward this concept that online social media contacts may not necessarily belong exclusively to the employer. For example, in the summary judgment case of Eagle Professional Resources Inc. v. MacMullin, 2013 ONSC 2501(Ont. S.C.) [an enhanced version of this opinion is available to lexis.com subscribers], confirmed on appeal yesterday, the court held that three employees did not breach the non-solicitation provision of their employment contract when they allegedly contacted their former employer’s customers. 

Can “Publicly Available” Information be Confidential?

The employees argued that they did not actively approach any of their former employer’s customers, but to the extent that they did continue to work in their field, they relied on “publicly available” information.

It is established law (and common sense) that a company cannot assert confidentiality over otherwise publicly available information. In the Canadian Eagle case, the employer argued the customer information was taken from an internal database. The three defendant employees argued the customer information was publicly available online from social media sites such as LinkedIn:

27 In this case, there is no evidence from Eagle, other than a very bald assertion, that it had any proprietary interest entitled to protection. According to the Defendants, the information that they learned at Eagle was all publicly available and obtained from such sources as social media websites.

As a summary judgment case, the decision is brief and does not go into detail about the nature of the social media sites, who owned them, whether they were the companies’ or the employees’ sites, or whether the online public sources were open to anyone in or beyond the company. All we know is that they were “publicly available”, essentially eliminating the employer’s proprietary interest over such content.

There are, of course, various intellectual property laws available to prevent people from stealing content or scraping from another person’s or company’s website. What remains less clear, however, is the extent to which an employer can ascribe a confidential value to something that is publicly available. 

But the Telephone Book is not Confidential

One colleague of mine has commented that the concept is not new if you think about the traditional telephone book. The difference, however, is that the value of the list is derived from WHO is on that confidential list, not what is their telephone number or email address. In other words, who cares who lives in Toronto?  As an employer, I would want to know which specific individuals in Toronto will want my business, and that is the list I would want to protect and prevent employees from taking with them and competing against me.

What to do?

The LinkedIn account is a contract between the individual and LinkedIn, but employers who anticipate a lot of active LinkedIn participation on behalf of the company should consider some sort of additional agreement between the employer and the employee. This agreement could set out the parameters of use, who speaks on behalf of the company, and most importantly – who owns the content, some of which is produced on company time and on company equipment.

The law is quickly evolving on social media content, but there is no doubt that many of the headaches could be avoided with strong contracts upfront, entered into when the parties are still friends.

For additional updates, please visit Lisa Stam's blog, Employment and Human Rights Law in Canada

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