Accessing Your Employee’s Social Media Accounts May Violate Federal Law

Thumbnail image for facebookprivacy.jpg

Back in 2011, when y’all were Tebowing, planking and winning, I was blogging about this case where an employer allegedly updated its employee’s Facebook page and tweeted from her Twitter account without her permission while she was on leave from work following a car accident.

The Stored Communications Act prohibits intentional, unauthorized access to electronically stored communications. The employer admitted that it had accessed the employee’s social media accounts. However, it claimed that it had permission because the employee left her passwords stored on a company server. So, the employer moved for summary judgment.

Opposing the motion, the employee argued that, while the company did possess the account passwords, she had told them to leave their digital fingers off of her social media accounts. This would have made the access unauthorized.

So, faced with a he said/she said, the court, in this opinion, decided to let a jury decide who is telling the truth.

What does all of this mean for employers?

Jon Hyman, at the Ohio Employer’s Law Blog, discussing the case here, offers this takeaway:

“If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact.”

Solid advice right there.

I say that once the employee sets up his or her own social media account, it’s hands off to the employer. Period. Sure, the employer can require that the employee’s online speech conform to the law (e.g., trademark, copyright, and fair use laws) and otherwise require a disclaimer where a social media posting could suggest that the employee is speaking for the employer. But, directly accessing those accounts? Fuggedaboutit!

Instead, if you want an employee to tweet and Facebook for the business, then set up the account yourself, maintain the username and password, and have any employee with access to those accounts acknowledge, in writing, the company’s ownership rights in the account.

Updated:
  • Mary E. Wright

    Ownership of social media accounts, websites and content is critical to the employer’s return on investment, too. Get it in writing. Add it to the job description. Make sure at least some part the compensation is attributable to social media work. Maintain possession of mailing lists and newsletter accounts. Prohibit the individual from reaching out to subscribers on his or her own LinkedIn or Facebook pages. While the focus these days is almost exclusively on employee loss of privacy, the next wave will be focused on the empoloyer’s loss of time and money invested. IMHO.

  • http://www.itsmarketingnow.com Jeana Salomone

    There is an interesting nuance here . . . if the employee is posting on company time, does the company then own that communication?

    • http://www.theemployerhandbook.com/ Eric B. Meyer

      You raise good point, Jeana. The answer to that question may depend upon the device used to post the content (company versus personal) and the terms of service of the individual social media platform should be considered as well.