Pubications > What agreements should include social networking clauses?
Social networking clauses should be considered for inclusion in a wide range of commercial agreements. The questions are which agreements warrant such a clause and why should they be included?
Social media has pervaded every aspect of our lives. I recently found out about my nephew's engagement from Facebook no less! Few would argue that communicating with many people (albeit in shorter bursts) has never been faster or easier. Whilst the benefits of speed and brevity seem obvious many of us are contemplating the issues that social media presents in situations where one party has a legitimate interest in, and a right to control the activities of another. |
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Such obvious contractual relationships include:
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employment contracts; |
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contracts for services; |
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business acquisitions and divestitures; |
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franchise agreements; and |
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license agreements. |
Undoubtedly, there are others.
The extent to which agreement drafters include provisions relating to social media will of course be proportionate to the perceived risk and the issues that their clients wants to specifically authorise, limit or control. Whether these provisions are broadly or narrowly drafted is another issue that the party controlling the contract (Issuer) may also wish to consider.
Methods of communication
What social networking does very efficiently is communicate information. It is now usual to include an email address for the delivery of official notices under commercial contracts. Perhaps it will be usual to include social networking addresses in the future as an address for notice. Who would have thought that fax numbers would be included as a valid way of sending notices 30 years ago?
What is a social network clause?
The first reference that can be found to this term appears to be by Jon Bloor in his Blogg Peninsulawyer as he defined it in relation to Franchise Agreements and the Franshisor's right to control the Franchisees use of social media. Having acknowledged Jon, social network clauses are undoubtedly something that many of us have drafted albeit they were not as eloquently defined.
Jon's article raises some interesting issues about ownership of Twitter accounts and Facebook fan pages in the event that the Franchise is sold or subject to a change in control. Additionally, as has already been seen, employee use of the accounts and the issue of ownership of the copyright in them should also be considered by the Issuer.
Considerations for including social network clauses in agreements
In deciding whether a social networking clause should be included in any sort of agreement various high level considerations need to be made. The extent to which a valuable following (fans, followers or users) could be generated that presents either an asset that should be controlled or a liability if its ownership falls outside the Issuers control should be balanced against the costs of having a lawyer advise on and draft appropriate provisions. The other threshold issue is whether or not the Issuer has the legal right to control the use of social media in the circumstances at all. They may or may not.
The specific questions below may assist to determine whether social networking clauses should be included by a contract Issuer:
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is there valuable intellectual property that the Issuer wants to protect? |
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is the following more likely to be attached to an individual or a business? |
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is the content that creates the following about the Issuers business? |
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does the following represent a sales channel for the Issuer? |
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will the Issuer suffer detriment should the following not be controlled or move elsewhere? |
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are their complications around the ownership of the following that have not been considered by the present agreement? |
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is there specific legislation that the Issuer is governed by that may impact on the use of social media? |
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does social media present a risk if not able to be controlled? |
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who would have to respond in the event of a viral social media crisis? |
Whilst there is no definitive yes/no threshold, there are certain agreements that would seem to warrant the inclusion of social media clauses that I have listed above. In my view, Jon's example of Franchise Agreements are an excellent case in point.
Has your lawyer considered social media issues as they apply to your Agreement? Or are you getting boilerplate agreements that have little thought put into the implications of issues that have arisen from social networking in the new millennium?
"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".
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