Social media platforms allow their users to create unique usernames which become part of their virtual identity, allowing them to share content and network with other platform users. These accounts become an integral part of our virtual life so many would say they are, in fact, one’s intangible property.
A. Can we know for sure who has right to ownership?
There are different types of social media accounts – personal and business – and although, in most cases they are easily distinguishable, sometimes the lines are blurred especially when employees of companies take on marketing roles.
Personal accounts are straightforward, as long as you read the fine print. You go on vacation, snap a photo and update your status on how your well-deserved vacation is going by uploading it to Instagram or Facebook, a platform you may use to connect with your friends and family. You are the only one who has access to your unique log in details such as username and password, hence a private account.
‘Business’ accounts run by a company’s employees are more complicated, regarding ownership and access to, what would otherwise be, private information. So, who owns business social media accounts accessed and controlled by employees? There are various factors which contribute to making that decision. Ideally, you want to ensure that other platform users recognise the username and associate it with the business, not the employee, like a trademark. The subject of content is still a grey area – is it the intellectual property of the employee or the company itself?
B. The hardships of distinguishing ownership in Hayley Paige v JLM Couture
The former question was the focal topic of discussion in the U.S. case of Hayley Paige Gutman v JLM Couture, where the parties disputed ownership rights of the hybrid Instagram account. Referring to the account as ‘hybrid’ due to the nature of the arguments presented by the parties.
This case was filed as a result of an alleged misuse of the account after Gutman advertised third party products without the approval of her employer, JLM Couture. The defendant, Gutman, argued that due to the style of the posts on her Instagram handle @misshayleypaige, the account was of a private and personal nature, created in personal capacity, even though she has used the account to promote her bridal collection designed for her parent company, JLM Couture.
The appellant, JLM Couture, counter proposed the account being a business account due to the significant percentage (95%) of the content consisting of marketing for the brand, Hayley Paige. The decision favoured the arguments of JLM Couture, stating that Gutman was under a contractual obligation to give her employer access to the account in question since she has signed a contract allowing the company to reserve the right of ownership over any marketing platform and contents published under the name of Hayley Paige or any derivative thereof in relation to her branding. Eventually, multiple negotiations and a restraining order (against Gutman) later, it was agreed that Gutman’s social media account was primarily used for marketing purposes, regardless of the odd personal content here and there, and JLM Couture had the contractual right to access it.
The economic value of a business social media account is often greater than a personal one, especially those which have a large following. Companies rely on these social media platform followings to grow the image and reputation of their establishment. Often, when there are blurred lines regarding the ownership of social media accounts, employees can easily damage a company’s imagine. For instance, in the case of PhoneDog v Kravitz, after the termination of Kravitz’s employment, he used the Twitter account originally created to advertise the services of PhoneDog during his employment, to advertise the services of its competitor. The appellant sued for misappropriation of the account and disclosure of trade secrets. The parties settled and Kravitz continued to use the Twitter account, but the appellant endured financial loss and, without a doubt, a loss of clientele.
A business’ right to ownership of social media accounts used for marketing purposes should be made clear, not only to avoid legal disputes such as those mentioned above but also to protect the integrity and image of the company. Employment contracts should contain social media clauses stating that any content produced and published on the social media account under the management of the business belongs exclusively to the business. So, a business social media account constitutes virtual property so why should you risk losing it?