Article: Business use of social media – protecting your intellectual property

Social media is increasingly used in a business context. Organisations use a variety of forums for a variety of activities, including brand development and marketing, recruitment, communicating with their customers or the public, delivering their services and collaborating with other organisations. Individuals also use social media in a business context. As well as use on behalf of their employers, social media may assist with finding work, or promote personal skills and reputation. An organisation’s activities may also be discussed by many other users of social media (in a positive or negative way).

These activities lead to increased challenges for organisations in protecting their proprietary content, business information, brand and reputation.

Reduced control

Challenges arise from the reduced control presented by social media; accounts can be set up and content distributed more easily and quickly than we have previously been used to with other forms of media. For example:

• There may be fewer checks and less supervision of posts, blogs or communications created by employees on behalf of (or in the name of) the organisation than with other forms of marketing and communications (such as the organisation’s websites or official newsletters). This leads to risks of oversharing of proprietary content or information, or communications not being in line with corporate brand and strategy (as well as risks of the content infringing third party rights or breaching other laws).
• There can be a blur between personal and business use of social media which in turn leads to uncertainty over who owns or has rights to content – is it an employee’s personal content or was it created on behalf of the organisation? This may arise, for example, in relation to social media contacts and networks, and blogging or microblogging on business matters.
• Third parties are easily able to set up accounts and open discussions relating to an organisation, and may benefit from unauthorised use of a brand, or cause damage to reputation and brand. Similar concerns may arise from staff naming their employer in connection with otherwise personal posts.

Maintaining control – a few tips

The following are a few practical tips to assist organisations in protecting and controlling use of their intellectual property over social media:

• Set up company or role-based social media accounts for staff to use. These can make it clearer that content within those accounts is created or used on your behalf and is not personal to an individual staff member, and well as easing access to and control of content. Stay aware of the terms of use of the social media provider, and how these impact access and rights to content.
• Introduce social media policy, training and awareness-raising for staff. These can clarify the risks involved, and make it clear what is expected from staff in use of social media on your behalf, as well as any use of the company name and business content within personal social media accounts. Consider four-eyes reviews before content is posted within company accounts.
• Consider registering your name or brand as a trade mark, which can enhance your ability to prevent third party use legally. Identify and classify other intellectual assets such as database rights, copyright works and confidential know-how.
• Review your access controls to social media accounts, and to intellectual assets within the organisation, in order to reduce unauthorised or excessive distribution over social media. Other technological security measures may also reduce unauthorised distribution and copying.
• Introduce controls within your contracts with staff, contractors, customers and suppliers. Contract terms could, for example, cover the following in the social media context: ownership of and rights to intellectual property; access to business content and contacts; restrictions on publicity, use of brand, content and confidential information; restrictions on use of accounts and content once the relationship ends. The scope of restrictions should be carefully considered as they can be unenforceable if they are overly restrictive.
• Monitor use of your brand and content within social media, and take prompt action against misuse (where feasible). Social media providers may be able to assist you with this, for example through the use of take-down procedures for unlawful content. Work out how to respond to legitimate negative (as well as positive) feedback and opinions on social media. Once content is out there, it may be much more difficult to control as it gets re-shared by users, and this may also weaken legal protection (for example by reducing confidentiality or uniqueness). It is therefore preferable to take action against unauthorised activities early on (or prevent the content getting out there to start with).

Olivia Whitcroft, principal of OBEP, 26 August 2016

This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details