Who owns EGC created?
This depends largely on the legal relationship between the parties, and the duties of the creator of the content.
Whilst the term ‘Employee Generated Content’ assumes an employment relationship, in some situations, this may not be the case, such as where the individual is performing their services as an independent contractor rather than an employee.
In the absence of a written agreement to the contrary, and subject to some exceptions, independent contractors will generally own the intellectual property rights in the content they create.
If, however, the content has been created by an employee, the employer will generally own the intellectual property created by their employees if that content was created in the course of their employment.
It is therefore very important to consider the relationship that exists between the parties, how the employee’s duties are articulated in their employment agreement, and what rights the employer has to direct the employee’s activities in relation to the creation and use of the EGC.
What if the employee breaches confidentiality in EGC?
Confidentiality is an important matter that should be covered in the agreement between the business owner and the employee or independent contractor.
EGC may often showcase the workplace, the workplace culture and the employee’s experiences. In doing so, the employee may potentially breach confidentiality owed to their employer in relation to trade secrets or client / customer confidentiality.
Employment agreements should clearly set out the employee’s obligations in relation to protecting confidential information and any prohibitions, which may also be covered in workplace policies, in relation to EGC in this regard.
What if the EGC is damaging to the employer’s brand?
The agreement with the individual creating the EGC should deal with this issue. This may include rights to terminate the employment or retainer, to require the individual to remove the EGC from where it has been uploaded, and to compensate the business owner where loss has occurred.
Employers should also consider whether they wish to pre-approve EGC before employees upload that content publicly, and set out any obligations in this regard in employment agreements.
To minimise risk around potential personal views shared by employees which may impact on the reputation of the brand, employers may wish to impose obligations on the employee to include disclaimers that views shared on their own social media accounts are their own and do not necessarily represent the views of the employer or its brand.
Who holds rights to social media accounts on which EGC is uploaded?
This can be a complex issue and factors such as the following will need to be considered:
- who created the account, and if it was an employee, whether this was in the course of their employment;
- which platform it was created on and what their terms and conditions state in relation to account rights; and
- the employment agreement terms and any workplace policies in this regard.
It is important that this is considered by the employer and appropriate terms and conditions placed in employment agreements in this regard.
Can employers require employees to post advertising content for the brand on their own social media accounts?
This is a matter that should be agreed between the parties and either set out in their employment or contractor agreement at the time they are hired or retained, or agreed between the parties on a case-by-case basis.
Employers should take care not to force employees to create and post content on their personal social media accounts if this is not part of their duties, which may breach several laws in place to protect employees depending on the circumstances.
Can the business owner use EGC uploaded to the employee's / contractor’s own social media accounts to advertise their brand?
This will depend on who owns the EGC, and any content usage rights agreed between the parties.
10 best practice tips for EGC
Businesses can benefit from EGC whilst protecting themselves through the following steps:
- Ensure robust agreements are put in place with all employees and contractors, which set out intellectual property ownership in relation to EGC assets;
- Ensure appropriate workplace policies are in place in relation to EGC, which have been made available to all parties to which they are expected to apply, and ensure that they are regularly reviewed and updated as necessary;
- Where certain individuals are expected to be involved in the creation of EGC, and to upload this to certain accounts, ensure this is clearly agreed with the individual as part of their duties;
- Consider what steps should be taken in relation to EGC approval and moderation and ensure this is reflected in relevant agreements and policies;
- Set out consent and release terms in agreements where employees or contractors are likely to be utilised in content as part of their duties (such as being featured in Reels on the brand’s Instagram account);
- Consider and set out in relevant agreements, moral right consents in relation to EGC created by employees which the employer intends to use themselves in certain ways to advertise the brand;
- Consider whether employees or contractors should create corporate accounts which are not mixed with their personal accounts for the purpose of uploading EGC;
- Consider issues in relation to control of passwords and access to accounts;
- Consider prohibitions in relation to employees and contractors using business contact lists to connect with contacts on social media accounts and use of those contacts outside of their employment duties;
- Consider the inclusion of post termination restraints in relation to social media.
For assistance with matters related to EGC, schedule your free initial discovery consultation to see how we can help you.
Information contained within this blog post is intended to be general information only and is not in any way intended to constitute legal advice. You should not act or rely on any information found in this blog post without obtaining prior advice specific to your circumstances.
