What seems like a simple question may, after all, not be that simple. With the explosion of Twitter, Facebook, LinkedIn, and other social media sites, businesses have modified their marketing plans to take advantage of this new form of “connecting” with their customer.
Who, exactly, owns the account when the account is used both professionally and personally? A recent lawsuit filed in California will hopefully give employers an answer. The lawsuit was filed by PhoneDog, a website company specializing in mobile products and services.
PhoneDog sued its former employee, Noah Kravitz, for “misappropriation of trade secrets and damage to the company’s business, goodwill, and reputation.” The basis of the suit is PhoneDog’s claim that Kravitz has continued to use a Twitter account he was given while employed with PhoneDog. Kravitz was a product reviewer and video blogger for PhoneDog, and he used the Twitter account, @PhoneDog_Noah, to disseminate information and promote PhoneDog’s services.
The account was opened by Kravitz and was linked to his personal email address. He maintained the account himself while tweeting personal and professional things throughout his employment, including his own articles, as well as tweets about sports. In the course of Kravitz’s employment, the Twitter account garnered about 17,000 followers.
When Kravitz resigned, PhoneDog says it asked him to let go of the Twitter account, but Kravitz refused and changed the handle to @noahkravitz and continued to tweet under the account. Kravitz has denied PhoneDog’s claims and contends that when he resigned, PhoneDog said it was okay if he kept the account and even asked him to tweet from time to time on its behalf. According to PhoneDog, each follower is valued at $2.50, and with 17,000 followers, PhoneDog contends its claim is worth $340,000.
The outcome of this case may turn on the factual dispute over whether PhoneDog told Kravitz he could keep the account. Generally, to win a trade secret case an employer must prove that the alleged trade secret was truly confidential and the employer must also show that it took reasonable steps to maintain the confidentiality of the information claimed to be secret. By allowing Kravitz to open the account and link it to his personal email, PhoneDog may have undermined the strength of its claim. On the other hand, under traditional employment law doctrines the employer owns what the employee creates for business purposes during the term of employment.
This case highlights an issue that employers are bound to face more often in today’s tech savvy workplace. However, this case also highlights some very simple steps Employers can take to better protect their “ownership” of their social media marketing. For example, the site should:
- Be created and maintained pursuant to a written policy setting forth rules governing its use, and such use should be strictly controlled.
- The site should be maintained by a specific employee, and should not be linked to the employee’s personal email account.
- The account should be used solely for business purposes, and personal should be removed immediately.
- The employee responsible for maintaining the site should sign an agreement acknowledging that the site, its name (or handle), and all of its content are owned exclusively by the company and cannot be accessed or used by any other person for any reason, and that upon termination the employee is required to turn over all password information and agree not to post any further information.