Digital Self‐Ownership: A Publicity‐Rights Framework for Determining Employee Social Media Rights

• DOI: http://doi.org/10.1111/ablj.12084
• Author: Patricia Sánchez Abril,Susan Park
• Published date: 01 September 2016
• Date: 01 September 2016

Digital Self-Ownership: A Publicity-

Rights Framework for Determining

Employee Social Media Rights

Susan Park* and Patricia S

anchez Abril**

INTRODUCTION

Imagine an up-and-coming company hires you as one of its first

employees. Passionate about your employer, you put in long hours

doing everything from marketing to accounting to event planning. You

are also proud of your employer’s product, so you begin to publicize it

to your friends through your social network accounts. (In fact, the com-

pany’s founder is also one of your Facebook friends.) You tell your

friends about the product launch, invite them to marketing events, and

eventually blog about your industry, amassing a significant social media

following while creating buzz about your employer. But one day, during

layoffs unrelated to your own efforts, you are fired. As you walk out the

door, your supervisor asks you to return the office keys, your parking

pass, and ... administrative rights to your social media profiles. Can this be?

*Associate Professor of Legal Studies in Business, Boise State University. This work was

generously supported through a summer research grant from the Boise State University

College of Business and Economics.

**Associate Professor of Business Law, University of Miami School of Business Administra-

tion. This work was generously supported through summer research grants from the Uni-

versity of Miami Provost’s Research Award and the School of Business Administration.

The authors would like to thank the editors of the American Business Law Journal and all of

the participants in the 2014 ABLJ Invited Scholars Colloquium for their valuable thoughts

and insights. We would also like to thank Dorothy Anne Hector and Megan Lipsky for

their valuable research assistance.

V

C2016 The Authors

American Business Law Journal V

C2016 Academy of Legal Studies in Business

537

American Business Law Journal

Volume 53, Issue 3, 537–598, Fall 2016

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The term “social media” encompasses any online platform that allows

individuals to communicate, create content, and interact socially.

1

Social

media can include blogs, wikis, podcasts, photos and video sharing, vir-

tual worlds, and social networking sites such as LinkedIn, Facebook,

Instagram, and Twitter.

2

For individuals, social media can be the digital

representation of the self online. Social media profiles are fora for com-

munication, self-expression, identity creation, and relationship-building

in front of audiences of few or many. The phenomenon of social

media—and its use in business—is less than a decade old.

3

It is thus no

surprise that both normative and legal questions regularly test its limits.

The ubiquity and accessibility of social media has proven enticing to

businesses and institutions, which increasingly use it as a low-cost mar-

keting, sales, and branding tool. The presence of businesses on social

media is thus growing rapidly. Recent studies show that the overwhelm-

ing majority of Fortune 500 companies are active on social media:

ninety-seven percent have a presence on LinkedIn.

4

Over eighty per-

cent have corporate Facebook accounts, and eighty-three percent use

Twitter at least once every thirty days.

5

These trends mirror those of

1

See, e.g., Simeon Edosomwan et al., The History of Social Media and Its Impact on Business,

16 J. APPLIED MGMT.&ENTREPRENEURSHIP (2011); CHRISTIAN FUCHS,SOCIAL MEDIA:A

CRITICAL INTRODUCTION (2013).

2

Alexander Naito, Comment, A Fourth Amendment Status Update: Applying Constitutional Pri-

vacy Protection to Employees’ Social Media Use,14U.P

A.J.CONST. L. 849, 858 (2012).

3

The three principal social media sites—Twitter, LinkedIn, and Facebook—were all

founded between 2002 and 2006. Sarah Phillips, A Brief History of Facebook,T

HE GUARDIAN

(July 25, 2007, 5:29 AM), http://www.theguardian.com/technology/2007/jul/25/media.

newmedia; Charles Arthur, How Twitter Was Born: The First 140 Users,T

HE GUARDIAN (Jan.

11, 2010, 8:14 AM), http://www.theguardian.com/technology/blog/2010/jan/11/twitter-first-

140-users-history; A Brief History of LinkedIn,L

INKEDIN, https://ourstory.linkedin.com/ (last

visited Mar. 13, 2016).

4

Nora Ganlm Barnes & Ava M. Lescault, The 2014 Fortune 500 and Social Media: LinkedIn

Dominates as Use of Newer Tools Explodes,C

HARLTON COLL.OF BUS.CTR.FOR MKTG.RESEARCH,

UNIV.OF MASS.DARTMOUTH (2014), http://www.umassd.edu/cmr/socialmediaresearch/

2014fortune500/. The University of Massachusetts Dartmouth Center for Marketing

Research surveyed Fortune 500 companies recognized as of May 2014 to compile data on

company usage of social media platforms including Facebook, Twitter, Instagram,

Google1, Foursquare, Pinterest, YouTube, and others. Id.

5

Id.

538 Vol. 53 / American Business Law Journal

smaller businesses, whose success often depends on the strength of their

relationships with customers and other constituencies.

6

But the mere existence of a social media presence cannot alone

anthropomorphize an institution, or cultivate valuable relationships.

Individuals—employees and agents—work to create and advertise the

institutional identity and create relationships through their own posts,

content, and management of complex networks of individual and busi-

ness relationships. Although the practice of social media management is

ubiquitous, the work of these modern-day Cyranos is caught in a

blurred

7

and legally undefined territory where the personal melds with

the professional. Sometimes, employees create the company’s profile as

individuals, becoming personally bound to user contracts with the social

network providers. These employees may control the password and

access to the company account. In other cases, employees may use their

own profiles to boost their company’s notoriety alongside their own, or

write their own industry-related blogs whose goodwill spills over to the

author’s employer. Or companies might encourage employees to foster

their own social media presence to enhance professional connections

and reputation. The result, in physical terms, is both a personal calling

card and a company billboard, sharing the attention of a coveted

audience.

8

When employers and employees who have shared a social media pro-

file part ways, who retains the right to control the Twitter feed, the

Facebook page, or the blog? More specifically, who keeps the social media

6

A recent survey revealed that the majority of small businesses have an online presence,

which they use primarily for business networking. NAT’LSMALL BUS.ASSOC., 2013 SMALL

BUSINESS TECHNOLOGY SURVEY (2013), http://www.nsba.biz/wp-content/uploads/2013/09/Tech-

nology-Survey-2013.pdf.

7

Several scholars have described the online convergence of personal and work related as

“blurred.” See Lauren Gelman, Privacy, Free Speech, and “Blurry-Edged” Social Networks,50

B.C. L. REV. 1315, 1316 (2009); see also Patricia S

anchez Abril et al., Blurred Boundaries:

Social Media Privacy and the Twenty-First-Century Employee,49A

M.BUS. L.J. 63, 95 (2012);

Robert Sprague, Invasion of the Social Networks: Blurring the Line Between Personal Life and the

Employment Relationship,50U.L

OUISVILLE L. REV. 1, 12 n.72 (2011).

8

It is worth noting that people use social media for many reasons, including communica-

tion, companionship, and connectivity. This article focuses narrowly on those accounts

whose primary or secondary purpose is to promote a business or a professional.

2016 / Digital Self-Ownership 539