Social media accounts and the departing employee
Q. As marketing manager at Widget Company, Katie’s job description includes maintaining a Twitter account and tweets information about the company and its products. She has attracted 8,000 avid followers with her often witty and entertaining tweets. What happens to this Twitter account after Katie leaves employment, and she wishes to continue the account and connection with the followers on her own, or worse, on behalf of a competing company?A. Employees who post tweets on behalf of their employers’ businesses add much of their own personal brand – their voice, their opinions, their snarky remarks — to the information they are disseminating on the company’s behalf.Often, the more personal their tweets, the more followers they attract and the more the company stands to benefit. Ironically, therein lies the crux of an emerging concern among employers. Who do these online accounts and relationships belong to? Often, the employees believe the relationships they have built belong to them, despite being paid by their employers to maintain them. Two recent court cases involving disputes over the ownership of social media accounts such as Twitter and LinkedIn are raising issues companies must consider.In a federal court in California, PhoneDog brought an action against Noah Kravitz, a former employee, alleging wrongful use of a Twitter account that PhoneDog claimed to own and to contain trade secrets.In that case, PhoneDog v. Kravitz, the company is claiming damages of $2.50 per follower for each month Kravitz continues to use the account.PhoneDog is a Web resource company that reviews mobile products and provides a resource guide for users to compare prices and shop mobile carriers. It uses social media in marketing its services, including Twitter, Facebook and YouTube.Kravitz began employment with PhoneDog in April 2006 as a product reviewer and video blogger. As part of his job, Kravitz distributed written and video content on the Twitter account “@PhoneDog_Noah.” He was paid to maintain the Twitter account, which had about 17,000 Twitter follows.Kravitz ended his employment in October 2010. PhoneDog alleges it asked for the transfer of the Twitter account, but Kravitz changed the account handle to “@noahkravitz” and continued to use the account. PhoneDog brought suit, claiming, among other things, ownership of the account and misappropriation of trade secrets. Kravitz has denied the allegations, asserting no trade secrets because everything on the Internet is in the public domain and that without an agreement prohibiting him from taking the account, he was free to do so and to change the Twitter handle. He also claimed that Twitter and its licensors own the account, not PhoneDog. Another caseIn a different case in federal court in Pennsylvania, Eagle v. Morgan, Linda Eagle sued Edcomm Inc., a company she helped co-found and of which she was an employee, over a LinkedIn account.Edcomm provides financial services and training for customers. While employed, Eagle invested much of her time and effort developing a reputation in the bank training industry by speaking at conferences, publishing and creating relationships with banking and finance leaders. She also established an individual account on LinkedIn, where she had a profile, including sections for disclosing associations, honors and awards.Eagle used her account to promote Edcomm’s services, to foster her reputation, to connect with family and friends, and to build relationships in the industry. Another employee of Edcomm was paid to help Eagle maintain the LinkedIn account and had access to the password.After Eagle was terminated involuntarily, Edcomm gained access to the LinkedIn account and changed the password. Edcomm replaced portions of Eagle’s profile on the LinkedIn account with the profile of the new interim CEO. Those seeking Eagle on LinkedIn were brought to the modified CEO’s LinkedIn page, which still showed Eagle’s awards, honors and connections.Eagle brought suit to gain return of her LinkedIn account and damages. Edcomm countersued, claiming Eagle’s LinkedIn account was used for Edcomm business and Edcomm personnel developed and maintained all connections and much of the content on the account.Companies generally have policies dealing with confidentiality and trade secrets and the appropriate use of social media. As the above cases demonstrate, employers should also consider policies and agreements on the ownership of social media accounts. Employers should review existing policies and determine whether they need to be revised. Employers should also contemplate separate written agreements that clearly spell out the company’s ownership of certain social media accounts.For example, employers that have employees maintain company accounts, such as Twitter and Facebook, as part of their job duties should consider agreements that identify the accounts as company property and acknowledge that the accounts are being used by employees as part of their job duties and that if the employees leave, the account stays with the company. A more difficult issue raised involves ownership over employees’ individual LinkedIn accounts. In these circumstances, companies may consider modified agreements on the use of such accounts. Jennifer L. Parent, a director in the Litigation Department and chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1360 or email@example.com.