Tips for Protecting Social Media Information as Trade Secrets

    May 10, 2012

     

    Earlier this week, I summarized recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets.  In each of these cases, a former employees retained the login credentials for their employers’ business social media accounts, refused to turn over the credentials, and used the information and friends list in connection with their new employment and to the detriment of their former employer.  Each court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets.

    While these decisions illustrate a potential remedy for the theft of social media information, prevention is much more efficient (and less costly) method of protecting social media information. Careful planning to protect a company’s social media presence and its business connections can save time and money in litigating against a former employee’s theft of social media information and credentials. In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen provide the following suggestions for protecting this valuable information:

    • Employers should ensure that they maintain a log of their social media account login credentials and that the log is appropriately updated.
    • Require employees who establish and maintain such accounts on behalf of the company to enter agreements that provide that the accounts and their login credentials are the sole property of the company.
    • Departing employees should be interviewed in connection with their exit to ensure that all company social media login credentials to which they had access have been returned.

    Maciel and Sorensen also explain that in the event that an employee takes the login credentials for the employer’s social media accounts when he or she leaves the company, it is essential for the employer to take prompt action to recover the information as delay can result in the loss of legal protections for the accounts and any connections that they hold.

    An ounce of prevention is truly worth the effort and expense of a litigation cure. Employers should consider including a provision within their existing social media policies or employment documents to prevent the unlawful use of their social media information from their current and former employees. 


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