Editor’s Note: This is the first of a 4-part series on social media law: protecting the ownership of your social media accounts (for both employers and employees).
I recently came across a very interesting lawsuit between a company and their former employee over ownership of a Twitter account. It’s the case of PhoneDog vs. Kravitz and it dates back to 2011. The case, though the only of its kind to-date, is extremely interesting and has a high-risk potential of being applicable to YOU, so listen up!
PhoneDog vs. Kravitz: The battle over a Twitter account valued at $340,000
Noah Kravitz was a PhoneDog employee. At the brand’s request, Kravitz had a Twitter account with the handle @Phonedog_Noah and used it to communicate brand messages as well as non-brand-related messages, in order to engage with and develop relationships with PhoneDog customers and prospective customers.
Over the course of his career with the company, Kravitz accumulated 17,000 followers. When he eventually left the company, Kravitz changed his Twitter handle to @NoahKravitz, kept all his followers and continued to engage with them – periodically promoting PhoneDog services and promotions at the brand’s request.
When PhoneDog owed him too much money in back pay, Kravitz stopped promoting the brand and the company sued him for having kept the account, valuing it at $2,50 per follower, which translated into a lawsuit in the amount of $340,000.
How does this situation potentially apply to you – as the company and/or as the employee?
After reading about this lawsuit, I was left with a mouthful of questions that I took to my good friend and colleague, Judith Delaney, an attorney who specializes in social media law and online privacy laws. I asked Judith the following four questions (click each question to be brought to its answer):
- Do companies have a legal right to do this? Under what circumstances does the company have the right to claim the account if it was always owned solely by the employee, even if it was at the brand’s request?
- Under what circumstances is it just too bad for the company, meaning they have no say or rights in the matter?
- Does it require a signed policy or agreement at the opening of the account, and if so, what is legally allowed to be included within these policies and agreements?
- Do these laws differ from state to state and from country to country?
Judith, being the fabulous and knowledgeable professional that she is, sent me back detailed answers to each of the above questions.
Because there is no simple answer to this rarely seen situation (for now), I’m going to spend the week providing you with Judith’s detailed answers, in hopes that they will give you a clear legal understanding of this type of situation and what it means for your organization and employees.
Let’s begin with answering question #1
Q: Do companies have a legal right to do this? Under what circumstances does the company have the right to claim the account if it was always owned solely by the employee, even if it was at the brand’s request?
It is of great importance that a company protect what they consider their social media assets (in the case of PhoneDog vs. Kravitz these “assets” were referred to in-part as trade secrets) especially for companies that use social media as part of their marketing platform.
So, if there is a dispute about ownership, employers are suing for trade secret protection of these social media accounts, and also alleging common law theories of misappropriation or conversion against former employees for taking these contacts, or the passwords to the accounts, upon their departure from the company;
And in the reverse, former employees are also using the misappropriation and conversion theories to sue their former employees (e.g.: Eagle v. Moran, No. C 11-4303. This was a personal LinkedIn account that an employee’s former employer gained access to, making it so that those seeking Eagle (the former employee) were linked instead to her replacement. The record from the November 2012 bench trial in this case remains under seal. No final decision has been entered.)
To sum up: It is all based on precedent in case law. What this means is that, based on lawsuits such as PhoneDog vs. Kravitz and the Eagle case, it appears that precedent is being set to use those “standards” as grounds to file a lawsuit (meaning yes, you can file a lawsuit) – whether they are factual grounds for suing depends on the outcome of the case. In other words, you can sue because others have, but the outcome of the case has yet to be determined since no judgement was passed on either case (more to come on this later this week).
What does this mean for your organization?
It means that, whether you represent the brand or are an employee of the brand, you need to take clear measures to protect your social accounts. Good intentions are great when everybody is happy and working together. But what if the employer/employee relationship turns sour? You absolutely do not want to find yourself in a situation where assets, trade secrets and ultimately lawyers are involved. So what can you do to better protect yourself? Read the second part of this 4-part series to find out!
Disclaimer: The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter thereof. Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or all of the content of this article.
Author of Crisis Ready: Building an Invincible Brand in an Uncertain World, Melissa Agnes is a leading authority on crisis preparedness, reputation management, and brand protection. Agnes is a coveted keynote speaker, commentator, and advisor to some of today’s leading organizations faced with the greatest risks. Learn more about Melissa and her work here.
Steven Spenser says
I'm not a lawyer, but I think if the social-network account was established at the workplace by an employee upon the orders of his employer, using the employer's hardware, software and Internet connection, and if the employee was tasked, as part of his job, with maintaining & updating the account, then clearly the account belongs to the employer and did so since its inception.
What makes this particular case muddy is that the company used the former employee as an unpaid contractor.
Any company which permits an employee to establish a social-network brand presence for the company without recording the login, password and other unique administrative details of the new account has no business being in business. Clearly, someone at this company deserves to be fired.
Melissa Agnes says
Although it may seem clear and cut-and-dry to us, it can get quite murky and messy in “battle”. For example, what you’ve said above could be said about the Eagle v. Moran case, but at the same time we’re talking about Linkedin in this case, and everyone knows that Linkedin is designed for personal brands to represent where you are in your career today, where you were last and to build a network of professional relationships… but yet, when you build a company with this network and this channel, the company can argue that it belongs to them, even though it is under an individual’s name.
As I said, it can get quite messy!
This is precisely why an agreement is truly so important to have from the get-go. You want to protect the company as well as the employee. All is best when everyone is on the same page and nothing is left to be misinterpreted in the most chaotic of moments.