legal

Who owns the online me, anyway?

Special to The Globe and Mail

(photos.com)

Controlling Internet misuse at work was a problem for employers a decade ago. Today, however, it is controlling what employees write and post on their online social media profiles. This is because instead of simply surfing the Web at work, employees now spend much of their time tweeting, surfing Facebook or blogging. And, given the potential for social media content to go viral, negative comments on Twitter, Facebook and blogs can be far more destructive.

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“Unless steps are taken to prevent access, a blog is readable by anyone in the world with access to the Internet. The grievor took no steps to prevent access. On the contrary, the tone of her blogs placed them very much in the public arena and suggested that the grievor relished addressing a wider audience.” So concluded a labour arbitrator in upholding the dismissal of an Alberta employee for posting criticisms of her co-workers and supervisors on her personal blog.

For many employers faced with the task of policing what their employees write online, this arbitrator’s decision is both reasonable and necessary.

But who owns the content within social media profiles, and do employers or potential employers have any right to dictate what employees say or write?

Ownership

Who owns the social media profiles themselves? If the profile was created, populated and maintained by an individual and is for his or her personal use, then he or she is the owner.  (However, as the court decision demonstrates, ownership alone does provide employees with immunity to say whatever they please about their employers.)

But what about social media profiles that are created for work or that have business purposes? Many companies encourage their employees to promote their personal social media profile as a component of what they do at work and many individuals reference their work in their postings. When those employees later leave their company, for one reason or another, who does that profile or its content belong to?

I recently dealt with such a case. In it, the employee’s Twitter profile had been developed for the purpose of promoting his work through his employer. The views he expressed were his own and the account was created under his name. However, when he left to go to a competitor, his original employer demanded that he abandon his profile and create a new one. Naturally, he refused. Unless there is a written policy or contractual agreement stating otherwise (and in this case there was not), social media profiles are a form of intellectual property that belong to the employee who created it, just like his or her name. The fact that the profile became more popular given this individual’s work through his employer did not result in the employer having any ownership stake in the content.

Employees who maintain profiles on behalf of their employers are a different story. If the social media profile was created for an employer, the profile itself and all of the contents within will be owned by the employer, even if an individual or group of individuals were responsible for its popularity and content.

Social media postings

In some circumstances employers can control what is posted on a social media profile. This is because most employees’ public profiles are directly linked to their employers. Facebook, Twitter and LinkedIn all encourage and then advertise place of work as a means of connecting with other individuals. Therefore, personal opinions can easily be confused with those of their employers. When this occurs, employers are within their rights to demand that employees remove that content, or possibly lose their job. This is exactly what happened to a Sportsnet broadcaster last year when he made his beliefs about same-sex marriage known through Twitter. Given his large following and the possibility that his comments could be construed as coming from his employer, he was immediately fired.

Access to social media accounts

Recently it was reported that some employers were demanding access to prospective employees’ Facebook accounts as a precondition of extending job offers. Job candidates have no legal obligation to provide this information and they can readily refuse. However, this is a double-edged sword. An employer can refuse to hire any candidate that does not comply with their hiring processes, subject only to the prohibition against discrimination in hiring based on human rights rules. Therefore, while a candidate need not provide access to his or her social media profiles, taking this stance could cost him or her a job.

What about current employees? Can an employer demand that they turn over login information? Similar to a job candidate, an employee can reasonably refuse such a request and justifiably so; the information within their social media profiles is private and confidential. The only difference is that current employees may be subject to a policy (if an employer has one) that permits it to access and monitor e-mail sent from work or away from work but through the company’s servers. This could even capture e-mail sent and received by personal or company-distributed BlackBerrys and iPhones, if they are connected to the company’s server.

Since employers own workplace computers and the servers they are connected to, they are allowed to monitor them with proper notice. Therefore, if a social media profile is linked to a workplace e-mail account so that updates or messages are received at work, which many people do, it can be monitored by an employer.

As is usually the case in workplace law, rights are determined based on what is in writing. If you are an employee, the key is to review and comprehend any intellectual property, Internet use or social media policies your employer has in place. If you are an employer, the key is to put those policies in place and then make sure they are enforced.

Daniel A. Lublin is a workplace law expert and a partner at Whitten & Lublin.

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