Skip to content

Employer or employee: who owns social media accounts or contacts?

Grant Machum and Richard Jordan

Employers carefully safeguard customer or client lists as confidential information. Gone are the days, however, where an employer’s customer list is only found in a Rolodex or in a closed database. Now, many employers and employees use social media channels to create, nurture and expand their customer base. What recourse does an employer have when an employee departs and takes with them the social media contacts, connections or followers they have obtained during the course of their employment?

While Canadian courts have yet to face these questions, several cases involving Twitter and LinkedIn from the United States and the United Kingdom shed light on how Canadian courts may approach the complex legal issues which arise.

This article considers what lessons we can learn from this case law. A forthcoming client update will provide some suggestions as to what steps employers can take to protect themselves with respect to social media.

1. The United States

  • PhoneDog v. Kravitz

Noah Kravitz worked as a reviewer and video blogger for PhoneDog, an online company which reviewed cell phones.  PhoneDog alleged that Kravitz was given use of and maintained the Twitter account, “@PhoneDog_Noah” to disseminate information and promote PhoneDog’s services.  During the course of his employment, Kravitz amassed 17,000 followers on Twitter. When Kravitz left PhoneDog in 2010, he ignored PhoneDog’s request that he relinquish use of the Twitter account, changed his handle to “@noahkravitz”, took his followers with him and used his Twitter account to promote his new employer, a PhoneDog competitor.

PhoneDog sued Kravitz for the unauthorized use of the Twitter account, alleging four claims, including misappropriation of trade secrets. The District Court in California denied Kravitz’s attempt to dismiss the case and held that (1) the Twitter account and its password could constitute a trade secret under California law, and (2) Kravitz’s refusal to “relinquish use of the password and account” could constitute misappropriation. The case eventually settled in 2012 with Kravitz keeping his Twitter handle and followers.

  • Eagle v. Morgan

Dr. Linda Eagle co-founded EdComm, a banking education company. In 2009, EdComm decided to use LinkedIn as a sales and marketing tool and encouraged Eagle and other senior executives to create LinkedIn accounts. Eagle was an industry leader and connected with over 4000 people; she also gave staff her password and directed them to maintain her account. When Eagle was terminated in 2011, an EdComm employee changed Eagle’s LinkedIn password, replaced her photo with that of her replacement and changed some content.  EdComm was in control of Eagle’s LinkedIn account for 17 days before LinkedIn took over the account and returned it to her.

Eagle brought eight causes of action against EdComm for the unauthorized use of her account for 17 days. She was successful in three: the tort of invasion of privacy by misappropriation of identity, the unauthorized use of her name, contrary to a Pennsylvania statute and the tort of misappropriation of publicity. However, Eagle’s damages were set at zero because she did not establish “one contract, one client, one prospect, or one deal that could have been but was not obtained during the period she did not have full access to her LinkedIn account.”

In its counterclaim, EdComm argued Eagle misappropriated the LinkedIn account as her own.  The Court disagreed, finding EdComm never had a policy of requiring its employees use LinkedIn.  The Court noted that the LinkedIn User Agreement expressly states that the account is between LinkedIn and the individual user. In addition, EdComm failed to put forth any evidence that Eagle’s contacts were developed and built through the investment of Edcomm’s time and money as opposed to Eagle’s own time, money and past experience.

2. The United Kingdom – more employer-friendly?

  • Hays Specialist Recruitment v. Ions, [2008] EWHC 745 (Ch),

Mr. Ions left his employment with Hays, a specialist employment agency, and established his own company which competed with Hays. Hays accused Ions of merging confidential business contacts onto his personal LinkedIn account and then using the contacts for his own company.  The Court ordered Ions to disclose all of the LinkedIn business contacts he made while at Hays.  The Court rejected Ion’s argument that once the contact had accepted his LinkedIn invitation, the contact ceased to be confidential. Accordingly, while Mr. Ions may have owned his account, the Court found that Hays continued to own the information that Ions had taken from Hays.

  • Whitmar Publications Ltd. v. Gamage, [2013] EWHC 1881 (Ch),

The employer, Whitmar, successfully sought an interim injunction against three ex-employees who used the company’s LinkedIn group contacts to market the launch of a rival business. One of the employees had maintained the Company’s LinkedIn group and refused to provide Whitmar with the user name, password and other access details for the LinkedIn groups. The Court found that the LinkedIn groups (rather than personal accounts) were operated for Whitmar’s benefit and promoted its business. The Court granted the injunction, finding that this was a misuse of “confidential information” and a breach of the implied duty of good faith owed by the employees. However, the Court did not determine who actually owned the LinkedIn groups.

3. Conclusion

These cases suggest that an employee will generally own their social media account, even where an employer has suggested creating the account, or where the employee permits other employees to use or maintain the account. While the results of the cases are fact-specific, the client lists and email addresses were found to be the employer’s property in both UK cases, whereas the employee was able to keep their followers or contacts in both of the American cases (one of which was the result of a settlement). The PhoneDog case reveals that ownership of social media accounts or followers may also raise intellectual property issues.

All four of these cases went to Court following the departure of an employee. Accordingly, in a follow-up article, we will address what steps an employer can take to protect their confidential information and mitigate the risk of a lengthy legal proceeding with a departing employee over social media accounts.


This update is intended for general information only. If you have questions about the above information, and how it applies to your specific situation, please contact a member of our Labour & Employment group.

 

Click here to subscribe to Stewart McKelvey Thought Leadership.

SHARE

Archive

Search Archive


 
 

2025 immigration challenges

November 18, 2024

By Brittany C. Trafford, Brendan Sheridan and Kaitlyn Clarke Recently, the Government of Canada made a number of changes to the immigration landscape in an effort to rein in the population growth, address the housing supply…

Read More

“Be prepared” – Recent Scouts Canada ruling provides new guidance to organizations that engage volunteers

November 15, 2024

By Jacob E. Zelman Many organizations in Canada rely heavily on the efforts of volunteers to assist with the delivery of services they provide. The Ontario Superior Court of Justice has recently provided new guidance…

Read More

Cap or no cap? Court of Appeal confirms damages are substantive law in interprovincial tort claims

November 12, 2024

Joe Thorne & Jennifer Taylor In 2005, a bus accident occurred in Nova Scotia. The people injured in the accident were residents of Newfoundland and Labrador, which is where they sued the bus owner and driver…

Read More

2024 Nova Scotia election: Employer obligations

October 31, 2024

By Killian McParland and Sophie Poulos As recently announced, the next Nova Scotia provincial election will be held on Tuesday, November 26, 2024. Under Nova Scotia’s Elections Act, every employee who is an eligible voter (i.e.…

Read More

Greener light for growth – Province provides further clarity on renewable energy future in Nova Scotia

October 24, 2024

By Sadira Jan, Dave Randell, Nancy Rubin, Kimberly MacLachlan, and Onye Njoku Bill 471, the Advancing Nova Scotia Opportunities Act, received Royal Assent and introduces changes to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation…

Read More

Bill C-49 is blowin’ a gale: A significant step in offshore renewable energy legislation

October 22, 2024

By Sadira Jan, Dave Randell, Nancy Rubin, G. John Samms, Kimberly MacLachlan, and  Jamie Gamblin Bill C-49 received Royal Assent and will amend the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia…

Read More

2024 New Brunswick election: employer obligations

October 17, 2024

By John Morse The New Brunswick provincial election is set to take place on Monday, October 21, 2024, with polling hours between 10:00 a.m. to 8:00 p.m. Under the New Brunswick Elections Act, all employees…

Read More

CAPSA releases guidelines on Capital Accumulation Plans and Pension Plan Risk Management

September 11, 2024

Level Chan and Dante Manna On September 9, 2024, the Canadian Association of Pension Supervisory Authorities (CAPSA) released the long-awaited final revisions to Guideline No. 3 – Guideline for Capital Accumulation Plans (CAPs) and the…

Read More

Nova Scotia legislative update: “Stronger Workplaces for Nova Scotia Act” – Bill No. 464

September 6, 2024

Sean Kelly and Tiegan A. Scott On September 5, 2024, the “Stronger Workplaces for Nova Scotia Act” (Bill No. 464) was introduced in the Nova Scotia House of Assembly for first reading by the Honourable Jill Balser…

Read More

Historic human rights ruling: Alberta tribunal sets record with landmark damages award, redefining the rules on compensation and deterrence

September 3, 2024

John A.C. Morse and Lauren Sorel The Human Rights Tribunal of Alberta (the “Tribunal”) recently awarded three complainants a total of $273,274.91 in compensation, with $155,000.00 of this amount designated as general damages – a…

Read More

Search Archive


Scroll To Top