A few months ago I confronted another FaceBook related case where we were arguing over what level of FaceBook activity constituted a solicitation in violation of a non-solicitation covenant. I’ve previously discussed this issue and given the sage advice that you’ll know it when you see it. I’m not so sure that’s such sage advice , but I think it really shows the tension and struggles of lawyers to want to address all the potential forms of solicitations that are out there.
That’s more a personal problem. But here is my dilemma – Facebook continues to evolve with the level of interaction it permits. We started off with the status update that folks still use today to tell us about new jobs, the birth of a child, or even very mundane things like a picture of what you are about to eat. We can also “check-in” when we are somewhere interesting (hopefully), upload pictures or videos, tag individuals to certain events or pictures, and like posts from others. The point is the technology is never ending and evolving. (Just like technology has always done.) So the FaceBook solicitation conundrum is this. At what point does a poster go from providing “information” to making a solicitation?
I think the majority might agree that a post that states a new job title is probably not a solicitation – a direct FaceBook message asking a former customer to come and talk about your company’s product line is. That’s not too difficult. Now what if there is a post about an upcoming meeting in a week or so where a new product is going to be unveiled? A former employee who is marketing the product did not create the post but instead likes it and then tags someone who was their former customer/friend at the previous place of employment. There’s no language inviting the customer to the meeting or asking that they attend – they’re just tagged. That’s a little tougher but the purpose of the tag is clear. To try and get that former customer to the new company presentation. I would argue that is a solicit.
What if the former employee simply likes the new meeting event information and then that information appears in their news feed? Now the former employee is introducing the solicitation by liking the post. But, the initial decision for the former customer to become friends with the former employee was the customers – you don’t have to be friends with anybody on FaceBook – it’s optional. Why should the former employee being penalized for having lots of Facebook friends they worked with?
So the lines are becoming blurrier and a sophisticated FaceBook user can exploit the blurred lines. Some folks will recommend that a non-solicit should be tailored to address social media, probably not a bad idea, but the employer will never be able to address every potential type of solicit as Facebook and other platforms evolve.