At the heart of a new federal lawsuit in San Francisco is the question of control of a Twitter account once an employee has left the company. PhoneDog LLC, is a South Carolina company that provides performance information on mobile phones and related applications. They have sued their former employee, Noah Kravitz, alleging that he is harming its business by continuing to use a Twitter account that he started while he was employed by PhoneDog LLC. It is likely that the outcome may hinge on an examination of business social media policies, or the lack of them. While the focus of the case is on the control and use of the court, it is the number of account followers that is of paramount importance.
In 2006, Noah Kravitz started using a company Twitter account to communicate with technology gadget followers with his take on new products and industry trends. The use of social media has become relatively standard practice in marketing at US firms, who often employ a specialist in this form of communication. Prior to joining PhoneDog, Kravitz was already a well-known technophile in Silicon Valley, with a certain measure of success.
In late 2010, Kravitz resigned from PhoneDog. He made a slight change in his Twitter account name and took about 17,000 Twitter followers out the door with him. PhoneDog filed a lawsuit against Kravitz in federal court, alleging that the followers are effectively, a customer list and therefore PhoneDog’s property; the conversion of Twitter account allowed Kravitz to pursue business opportunities adverse to PhoneDog. They allege damages in the amount of $340,000, calculated at the rate of $2.50 per follower per month for 18 months. A hearing in the case, PhoneDog LLC v. Kravitz, is scheduled for January 26 in San Francisco.
The Case Consequences
This case is likely to be the first of many that will effect how business form and maintain employer-employee social media policies and agreements. The legal boundary lines are currently quite hazy regarding employee’s personal use of social media and employer’s claim on the channels of communication. It has been settled law for some time that client lists, built over time using a company’s name and resources, and are in fact company property. The question is, do Twitter followers, LinkedIn contacts or Facebook contacts meet this same standard? Additionally, the suit may provide some guidelines on determining the value of a Twitter follower and further define ownership of accounts offered by an internet service provider, associated and paid for by a company and maintained by an individual.
This case should be closely watched by companies anxious for guidance on how their employees are using social media. This case will also likely affect e-discovery protocols and policies of businesses, firms and government agencies since Social media content has become a routine target of information requests in litigation and investigations. It is likely that the volume of social media requests in Ediscovery will continue to grow as companies expand their use of Twitter, Facebook and other forms of social media as they pursue all possible business opportunities.
A Quick Case Summary
During his time of employment at PhoneDog, Kravitz used the Twitter account to advertise PhoneDog products as well as to tweet non-work related material. This was apparently a standard practice of PhoneDog employees. The original account was created under the moniker of “@PhoneDog_Noah” and grew to 17,000 followers between the time he was hired in April 2006 and October 2010 when he resigned. Upon his resignation, he changed the name of the account to “@noahkravitz”. Later, he began working for PhoneDog competitor TechnoBuffalo. His account currently has about 24,000 followers.
PhoneDog claims it owns both the account and the password as company property and further calls the information “proprietary”. PhoneDog claims that the Twitter followers are the equivalent of a company list, and accuses Kravitz of using the account to: 1) communicate with its customers without permission and 2) benefiting from relationships formed through PhoneDog, including appearances on network and cable television programs.
Kravitz Preliminary Response
Kravitz provides several points to counter the arguments put forth by PhoneDog. He claims that PhoneDog gave him permission to continue using the Twitter account and further, directed existing followers to his new Twitter addresss on its website and with a farewell video it made available. Kravitz has emails which purport to show that PhoneDog subsequently asked him to continue “tweeting” about PhoneDog products and publish favorable articles, and that he did so under his new name. An important point to understand is that Kravitz claims that PhoneDog did not ask that he return the account before June 8, 2011, the day he sued the company for unpaid wages in California state court.
Social Media Ownership is the fundamental factor to consider
With a focus on the ownership of social media accounts, it is an important case for businesses to follow because there is no clear answer to the question under current law. PhoneDog asserts that both the account and the followers it generates are the sole property of PhoneDog. Kravitz argues that the account belongs to Twitter. Twitter’s terms of service states that “All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors” Twitter also reserves the right to terminate users and/or to reclaim usernames.
Another consideration to be resolved with this case are the policies regarding whether employees may create and mix non-work related content with work-related social media accounts. Kravitz claimes that PhoneDog had no policy on employee social media use but did ask its agents and employees to maintain Twitter accounts to help generate traffic to its site. He says he regularly used the account to tweet about sports, television, music, and other personal interests. An important secondary question that this suit raises is the following: Are followers interested in your employer and their goals, or is their interest in the individual writing the blog? Absent any direct policies, it is likely that employees may assume that if they use personal equipment (Smartphones, home computers, etc) to ‘tweet, connect or friend’ to various social media, that their views remain their own property, even when using a corporate sponsored platform.
What should companies do immediately
While the details of this particular case work their way to a decision, there are a number of steps that companies should immediately consider taking regarding social media policy. A written social media policy should be drafted and distributed to all employees to help eliminate any misunderstandings.
A partial list of considerations should include:
• A definition of who owns and controls the employee account
• Proper procedures to follow regarding use of accounts when an employee is terminated or leaves employment
• Procedures on permissions to change account names, settings and control of social media
• Create a policy on whether employees may mix personal with company messages on the social media site. Encourage employees to establish and keep separate forms of social media that represent and employees individual online persona.
Comments