I’ve received a lot of requests to write about social media law, so I put together a four-part series covering some of the basics. This is Part I.
I should start by saying that there is no such thing as Social Media Law per se. There is no Federal Omnibus Social Media Act or anything along those lines. Rather, those of us who are interested in this evolving means of communication look to a variety of types of existing law to try to understand how they apply to the world of social media. This series of posts will focus primarily on questions related to social media and the law from an employment perspective. As always, I welcome any comments, questions, or suggestions regarding additional topics you’d like to see this blog tackle.
And now, we journey into the strange world of social media law…
Social Media Law Part I: Who Owns Work-Related Social Media Accounts and Content?
When a social media account is created to promote a business, and an employee manages the account, who owns the account? What happens when the employee leaves? Several lawsuits currently making their way through the courts are considering variations of this question.
Phonedogs and Eagles
Perhaps the case receiving the most publicity is Phonedog v. Kravitz. PhoneDog is “an ‘interactive mobile news and reviews web resource’ that reviews mobile products and services and provides users with resources needed to research, compare prices, and shop.” Phonedog gave Kravitz, an employee, a Twitter account using the name @Phonedog_Noah, “to disseminate information and promote PhoneDog’s services.” The account attracted 17,000 followers. When Noah resigned, PhoneDog asked for the account back, but Kravitz changed the Twitter handle to NoahKravitz and continued to tweet from that account. Since his departure (and the publicity of the lawsuit), Kravitz’s Twitter account has gained roughly 7,000 more followers.
PhoneDog sued Kravitz for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (legalese for “stealing”). The company contends that it suffered $340,000 in damages as a result of Kravitz’s unauthorized use of the Twitter account, analogizing Kravitz’s 17,000 Twitter followers to a proprietary customer list.
Kravitz asserts the company has no property rights in the account for several reasons:
- He was the person to establish the account, create the name and password, not the company.
- Under the terms of Twitter’s Terms of Service, “all Twitter accounts are the exclusive property of Twitter and its licensors.” Kravitz interprets this to mean that Twitter owns the account, not PhoneDog.
- Unlike proprietary customer lists, which may be trade secrets, the identity of Kravitz’ Twitter followers was public information.
In February 2012, PhoneDog survived a motion to dismiss the lawsuit. In denying the motion to dismiss, the court recognized that PhoneDog adequately presented claims for misappropriation of trade secrets (specifically, the password to the account) and conversion. This means simply that PhoneDog presented enough initial evidence for the lawsuit to proceed. The court also found that PhoneDog had sufficiently alleged economic harm in the form of possible decreased revenue caused by the loss of the 17,000 followers and the loss of the company’s relationship with at least one advertiser. However, in order to succeed, PhoneDog will have to establish a property interest in the Twitter account, the password, or the followers. If it can do that, it will then have to establish the value of such a property interest, which may prove difficult.
Eagle v. Morgan is a somewhat similar case. Eagle was the owner of Edcomm, a financial services and training company. Eagle created a LinkedIn account that she used for business and personal purposes. SISCOM purchased Edcomm and subsequently discharged Eagle and appointed new management. Edcomm’s new executive management gained access to Eagle’s LinkedIn account, changed the password, then changed the profile to display the name and photo of the new CEO – Morgan. As a result, if anyone searched for Eagle on LinkedIn, they were shown Morgan’s name and photo, while the account still had all of Eagle’s information, including her awards, recommendations, and connections. Eagle sued Edcomm in federal court. She alleged 11 causes of action, including violation of the Computer Fraud & Abuse Act (CFAA), violation of the Lanham Act (the Federal law that covers trademarks and unfair competition), identity theft, unauthorized use of name, invasion of privacy, conversion, tortuous interference with contract, and civil conspiracy. Eagle regained control of the account, but allegedly refused to turn over Edcomm’s proprietary business information, so Edcomm countersued, essentially reversing most of the original claims made by Eagle. The District Court allowed the counterclaim to continue. Nothing has been decided in the case yet.
Finally, there is Ardis Health, LLC v. Nankivell. Nankivell, a former employee, was responsible for running Ardis Health’s social media and related websites. After he left the company, he refused to return the access information to those accounts to the company. While the case is proceeding, the court issued a preliminary injunction compelling Nankivell to return the access information for those accounts.
What helped the employer in the Ardis Health case was that the employee had signed an agreement and there was no dispute over who owned the account. The court found that the employer would be irreparably harmed if the access information was not returned prior to a final trial on the merits because, without that information, the employer was precluded from continuously updating its profiles and pages and from reacting to online trends.
These and similar cases will surely continue to move along. The clear take-away for employers is to have a written policy regarding any work-related online accounts. Employers: ambiguity is your enemy. Have a policy, in writing and signed by relevant employees (and contractors), stating exactly who owns your online accounts, passwords, customer lists, and similar information. Make sure that policy is reviewed periodically. It will be much easier to enforce your rights when they are clearly spelled out, rather than having to try to convince a court that you are the rightful owner of this valuable information.
I hope you enjoyed Part I of my Social Media Law series. Stay tuned for Part II next week.