socialmediaMany companies in today’s world encourage (and even require) their employee’s to use social media in promoting the company’s business and seeking customers. What happens when the employee leaves? Can the company require that the employee not use any of the information they publicly used during their employment?  First question – who owns the social media account(s)? If the company permitted the employee to promote it business using its customer list on the employee’s person social media account, that could be a huge problem in preventing the continued use post-employment. If the company desires to protect social media content, including customer list information, the company should create its own social media accounts and govern the access to such accounts by its employees. Many cases have recognized that social media content can constitute a protectable interest. Some commentators have put forward social media policies that would help buttress the ability of a company to claim trade secret protection in this context. However, for those companies in California, you should be careful about overstating non-solicitation restrictions (as those have been found to be illegal non-competes), and companies should also be careful when requiring social media account information. If the employee uses his own social media, California limits the ability of a company to demand (or even request) personal social media account information such as passwords and login information (see California Labor Code section 980). 

There is no doubt that emerging technologies are outpacing the ability of legislatures and courts to define and help companies protect trade secret information. In this environment, companies that do business through social media need to careful thought to whether and how they wish to protect their information from being used by former employees (and others). It isn’t as simple as modifying the current email and computer use policy. This area is extremely nuanced and is evolving very quickly. Certain social media allows the user to hide information, other social media is more transparent. There is no “one size fits all” social media policy for every business. Stay tuned for more in this area…