The story is well-known by now: Noah Kravitz was an employee at PhoneDog.com until October 2010, when he left the company and took his 17,000 Twitter followers with him. Kravitz, who changed his twitter account from @PhoneDogNoah to @NoahKravitz when he left, claims his departure was on good terms, and that the company even asked him to continue tweeting on their behalf after his departure. (PhoneDog.com says it asked for the account back).
Fast forward a few months: Kravitz sues his former employer over back pay, and the company responds with its own lawsuit claiming misappropriation of trade secrets. Why? Because Kravitz took 17,000 Twitter followers that belong to the company, followers that it claims are worth nearly $350,000.
Begs the question: what’s the legal framework for understanding this story?
“In a case that would be black and white if the Twitter account in question had been comprised only of the company name, or if an iron-clad social media policy had been in place,” writes Lawyers.com, “the question of whether Kravitz created and promoted the account of his own accord or on behalf of the company is crucial.”
Further complicating the issue, writes Michelle Sherman, an attorney at law firm Sheppard Mullin, is the fact that “the complaint is vague on who established the Twitter account, and whether the plaintiff PhoneDog had the login and password information for the account used by Kravitz.”
“It’s an important case because as more and more employees post material on Facebook, LinkedIn and Twitter-often on behalf of their companies – the social media account becomes increasingly more valuable to both employer and employee. The company gets an online voice and brand, and the employee makes often significant personal connections that can impact his career,” says Donna Ray Berkelhammer of Virginia-based law firm Sands Anderson PC.
But PhoneDog v. Kravitz isn’t the first lawsuit over the ownership of a social media account. Nor is Twitter the only battleground. Eagle v. Morgan, also pits a former employee against her employer, but the battleground in that case is the former employee’s LinkedIn account. And the claims are much broader:
“Dr. Eagle alleges violations of the Computer Fraud and Abuse Act, violation of the Lanham Act, unauthorized use of name, invasion of privacy by misappropriation of identity, misappropriation of publicity, identity theft, conversion, tortious interference with contract, civil conspiracy and civil aiding and abetting. Edcomm alleges [misappropriate of proprietary information], violations of the CFAA, misappropriation, conversion, tortious interference with contract but added claims for unfair competition and a violation of the Pennsylvania trade secret law.” (Think You Own Your LinkedIn, Twitter and Facebook Account? Think Again. by Dorsey & Whitney attorney, Nick Akerman)
So where does all of this leave employers and employees in their delicate social media dance?
In limbo, at least until the courts sort through the issues in PhoneDog v. Kravitz and Eagle v. Morgan (both suits have survived motions to dismiss). But that doesn’t mean waiting around for a lawsuit to hit your company. Instead, it means that – now more than ever – your company needs a social media policy that resolves the questions of account ownership.
Texas-based business and technology attorney Shawn Tuma: “All of the issues that are being litigated in PhoneDog could have been addressed and agreed to from the very beginning in a written social media policy, along with a host of other issues that arise concerning the use of social media” (Your Business Needs a Social Media Policy and This Is Why).
Both cases will be interesting to watch, and their outcomes could define how corporations adopt and enact social media strategies in the coming months and years.