This originally appeared on LinkedIn. You can follow Steve Anderson here.
Insurance agencies of all sizes are taking their marketing campaigns online using various social media and networking platforms. Currently, there are about 450 different online social platforms. Insurance agencies—as well as their employees—are using many of these social platforms to connect, interact, collaborate, and communicate with the growing number of connected consumers.
While social platforms can be a great marketing tool, use of these platforms can also expose an insurance agency to various legal risks. It is imperative that agency owners and managers become educated about these risks so they can take steps to appropriately manage them.
One area that is beginning to raise questions is the actual ownership of social platform accounts created while an employee of an organization. Who really owns a social profile is a question the legal system is beginning to explore.
What happens when the person who posts a status update on behalf of your agency (sometimes using their own name and their own account) is no longer working for you? It is crucial that both the agency and employee make sure that terms are in place so that there is no question on what happens in the case of resignation or termination. This is a very new—and growing—area of social media law.
There are currently at least three recent cases that are attempting to make sense of who owns social media accounts.
Phonedog v. Kravitz: PhoneDog, a tech review site, hired Noah Kravitz to help out with their social media marketing. Kravitz tweeted for the company as @Phonedog_Noah, attracting 17,000 followers. When he left the company, PhoneDog wanted the account back, but he simply changed it to @NoahKravitz and continued tweeting to the same followers. PhoneDog sued, and while the case is still proceeding, the company has had some success thus far in court. There is, however, a long way to go before PhoneDog can establish rights in the account and collect damages from Kravitz. To have 17,000 social media followers being hijacked by a rogue employee is a nightmare situation for any employer.
Eagle v. Morgan: Linda Eagle, the owner of a financial services company, created a LinkedIn account for business and personal purposes. SISCOM purchased the company and later replaced Eagle with new management. They gained access to the LinkedIn profile, changed the password, and replaced Eagle’s name and photo with that of the new CEO (Morgan), but retained a lot of Eagle’s professional information, along with her contacts. Eagle filed suit in federal court, claiming 11 causes of action, including identity theft. The company countersued on the grounds that it was the company itself, not Eagle, who was primarily responsible for developing the content and connections found on the LinkedIn account. Essentially, the court is considering whether this was a “personal” account in name only.
Ardis Health, LLC v. Nankivell: Nankivell was responsible for Ardis’ social media marketing. When he left the company, he refused to turn over the access information to various accounts. The court forced Nankivell to turn over the information because, in this case, Nankivell had signed an agreement specifying that the account information belonged to the company. The key here is that Ardis Health had a written agreement that they made Nankivell sign.
I have recommended for some time that every insurance salesperson have a presence on the social platforms where their current and prospective customers gather. Having a complete profile and being active on various social platforms is a primary way to maximize their networking and prospect research activities. Yet could this activity have a negative impact on the enforceability of a non-piracy agreement with that insurance producer?
If the salesperson leaves the current agency and moves to another, what happens to their network connections? The non-piracy probably has a provision that states the salesperson cannot solicit any of their former clients.
Yet if the salesperson is connected to those now former clients on a social platform, and they are informed of the move to the new agency because of that connection, does that violate the producer agreement? Or does it at least weaken the enforceability of the agreement? There is not a clear answer, yet. As discussed above, court cases are beginning to be filed in an attempt to answer these questions.
Whether you are on the employer or the employee side, the cleanest, clearest, and least costly approach would be to get everything in writing when it comes to who owns your business to business social media content. In most situations, if both sides have a written agreement spelling out who owns what—the profiles, the access info, the content, the followers—these types of controversies can be avoided.
You don’t want to have to convince a judge and jury that these are your followers or your content.