Who Owns Your Twitter Account?

We’ve talked before about who owns social media profiles, content, etc. (see Who Owns Your Company’s Social Media Profiles, Contacts and Content?), but we had not seen much guidance yet from the courts.  This may be starting to change.

In a recent case from California, PhoneDog v. Kravitz, the plaintiff, an “interactive mobile news and reviews” web company, sued one of its former employees, Noah Kravitz, when he refused to release his Twitter account to the company when his employment ended. 

During his employment, Kravitz used the Twitter account “@PhoneDog_Noah” to tweet about the company and to promote its services.  The Twitter account gained approximately 17,000 followers, not an unsubstantial number.

When Kravitz left PhoneDog, the company requested that he relinquish the Twitter account.  Instead, Kravitz simply changed his handle to “@noahkravitz” and kept using the account (and, importantly, kept the 17,000 followers).  Not surprisingly, this was not what PhoneDog had in mind. 

PhoneDog then sued Kravitz for, among other things, misappropriation of trade secrets and conversion (conversion – for the non-litigators in our audience – is sort of like theft in a noncriminal context).

Kravitz, in turn, moved to dismiss the complaint.  The court ultimately granted Kravitz’s motion as to a couple of PhoneDog’s claims, but the misappropriation of trade secrets and conversion claims survived.  Since this was only a motion to dismiss, we don’t know yet whether the court will actually find that Kravitz’s conduct in refusing to turn over the Twitter account will result in liability.  We do have some interesting insight, however, into the arguments both sides are likely to make in the case.

When discussing the issue of who actually owns the Twitter account, Kravitz argued that PhoneDog did not own the Twitter account because, according to Twitter’s Terms of Service, the account “‘as all Twitter accounts are, is the exclusive property of Twitter and its licensors, not PhoneDog.’”  PhoneDog, however, disagreed and countered that it had an ownership interest in the account based on the license granted to it by Twitter to use and access the account.

Kravitz also argued that PhoneDog did not own the 17,000 Twitter followers because, “‘followers are human beings who have the discretion to subscribe and/or unsubscribe to the Account without the consent of PhoneDog’ and are not property and cannot be owned.”  How philosophical of him.  

PhoneDog, in contrast, took a more pragmatic angle and argued that the list of followers is the same thing as an old-fashioned customer list, in which it had “an intangible property interest.”  It also argued that the list and the Twitter account’s password constituted trade secrets under California law.

As an aside – Kravitz’s arguments hearken back to one often raised in non-solicitation litigation – that customers or clients have free will and can choose where they do business – they cannot be “owned.”  Of course customers can choose to do business or not with a particular company.  However, companies and employees can also choose to contract away the right to service those customers – which impacts that customer’s “free will.”  That is the precise purpose of a non-solicitation agreement.  Companies and employees may also want to consider whether to contract about what to do with a Twitter account when an employee parts ways with the company.  It certainly would have helped avoid this piece of litigation.

Anyway, the court in the PhoneDog case, held that PhoneDog had met its obligation to adequately state a claim in the complaint for misappropriation of trade secrets and conversion, but since it was only a motion to dismiss, it did not rule on any of the real substantive issues.  We’ll have to wait and see how the case proceeds. 

So, why do we care about this case?  Well, even though we don’t get a lot of answers on the issue of who owns social media, the case demonstrates that employers who find themselves in PhoneDog’s unenviable position may have some recourse in the courts.  This may have only been a motion to dismiss, but it means that PhoneDog has survived the first round and can proceed with some of its claims.  We’ll keep you updated on what happens next.

Has the Internet Undermined the Confidentiality of Your Contact Database?

In our last post exploring the question of who owns social media, we addressed how employers can use confidentiality, nondisclosure and non-compete agreements to define ownership of a contact database when an employee leaves the company.  But what if the employee departs and then argues that the contact information is publicly available, and therefore, the employee can use that information without regard to a confidentiality or nondisclosure agreement?

As litigators, we have often argued that customer lists, contact databases, etc. are confidential and sometimes even trade secret information.  In the past, we could demonstrate that the company invested time and resources into developing the list, and that the information was not readily available to the public.  For example, in the past it was very difficult to use publicly available information (like the telephone book) to figure out who the key contact people were at an organization.  Today, with the Internet and social media, however, this kind of information is much more likely to be publicly available. 

The Sasqua case amply demonstrates this point.  (Sasqua Group, Inc. v. Courtney, 2010 WL 3613855 (E.D.N.Y. Aug. 2, 2010)).  There, Lori Courtney worked as a recruiter for Sasqua Group, an executive search consulting firm specializing in the recruitment of professionals for the financial services industry.  When Courtney left, Sasqua sought an injunction to preclude her from misappropriating its trade secrets.  According to Sasqua, Courtney had access to its customer database prior to her departure, which contained client contact information, individual candidate profiles, contact hiring preferences, employment backgrounds, descriptions of previous interactions with clients, resumes and other information.

The court decided that although an employer’s customer list can sometimes qualify for trade secret protection, “the exponential proliferation of information made available through full-blown use of the Internet [presents] a different story.”  The court noted that client information was readily ascertainable through LinkedIn, Facebook and similar services, sometimes in combination with a simple Google search.

In order to demonstrate this, Courtney’s lawyers put her on the stand during an evidentiary hearing and she showed the court – in real time – how easy it was for her to find contact information using the Web.  The Court found that Courtney’s testimony readily established that customer information could be obtained using publicly available information, even by someone with no memory of what was in the client list database. 

The court was also influenced by the fact that Sasqua failed to take basic steps to protect the secrecy of information in the databas.  Computers were not password protected and employees were not bound by restrictive covenants. Thus, the case underscores our previous two posts on the importance of having agreements with employees and consultants that addresses confidentiality (among many other things) as well as enforceable policies and procedures relating to protection of confidential information (see Who Owns Your Company’s Social Media Profiles, Contacts and Content? and Managing Ownership of Social Media Through Confidentiality, Non-Disclosure and Other Employment Agreements.)

Additionally, this case raises the issue of how companies can best protect information they may later want to assert is confidential.  Companies need to evaluate how the company (or its employees) use social media and other emerging technologies.  Where is your information going? How much client information are you (or your employees) putting out there?  How much control should you exert?  Do you have restricted databases, or can anyone access all company information? 

The takeaway?  If an organization does not take steps to protect its own information, it will be harder for us (in litigation) to seek protection from the Courts.  Do your agreements, policies and procedures offer you the protection you need?  What do you do to protect information?  We welcome your ideas!

Managing Ownership of Social Media Through Confidentiality, Non-Disclosure and Other Employment Agreements

We talked last time about the importance of having employee policies addressing ownership of social media content and connections.  Another place where ownership of social media should be addressed is in confidentiality, non-disclosure, non-compete and other employment agreements.  These agreements can help you set ground rules, shape expectations and put in place the protections your company needs. 

In PennWell Publishing Limited v. Ornstein, a court in the United Kingdom addressed whether an employee’s contacts, created, maintained and backed up on his employer’s computer system, belonged to the employer.  The employee’s employment contract did not address the issue.  Further complicating matters was the fact that the contacts at issue included personal contacts and business contacts the employee had prior to joining the employer. 

The Court ultimately concluded that the contact database belonged to the employer, and that the employee could not copy or remove the information in its entirety for use outside or after employment.  However, the Court also found that if the employee had kept a separate list of contacts and selectively copied those which he regarded as long-term or journalistic contacts (as opposed to those which would also be useful to the competing business he was setting up) and maintained them on his own computer, he would have been able to use them. 

Our takeaway from this case?  If you don’t have an agreement in place that specifies what to do with contacts, or different contact databases (whether maintained on your internal system on or a social media site) when an employee leaves, you are asking for trouble.

But, you are asking, what are my options?  If your company wants to “own” an employee’s contacts after the employee leaves employment, you should specify that in your agreements.  You should also have a conversation with incoming employees so that everyone is on the same page.  It may be that the potential employee – particularly one with a large database of existing contacts, like a recruiter – would not knowingly or willingly agree to give up their contacts and would rather find employment elsewhere.  (You should have seen the faces of the attendees at the Minnesota Recruiters Conference #14 when Teresa said that an employer might require that they leave behind all contact databases…)  As a result, it’s a good idea for the company to be open about its expectations right from the start. 

In light of the fact that you may lose good talent if you require employees to leave behind social media connections upon separation, you need to think creatively.  Perhaps a better solution would be to have your Agreements treat contacts, friends and connections an employee brings into a company differently from those connections that are developed during employment.  But this is not a one-size-fits-all solution.  It may not give your company adequate protection.  Plus, when an employee leaves it can often be difficult to separate new relationships from old. 

So, what’s another option?  What about sharing ownership?  That is, if an employee has, and further develops, a list of contacts, why not outline up front in your Agreements that if the employees leaves, they can keep their contacts, but they must leave you a copy too?  This may work better for some businesses and less so for others, but the key is to think not only about what kinds of protections your company needs, but also about the practical reality of social media connections.

What do your Agreements say?  Do they address social media?  What are your employees’ expectations regarding their ownership of social media?

Who Owns Your Company’s Social Media Profiles, Contacts and Content?

Who owns social media is a nebulous and often confounding question.  Teresa presented on this topic at the June 10, 2011, Minnesota Recruiters Conference #14 at General Mills.  The discussion focused on the following:

• Who owns content, contacts, and websites when employees use social media for recruiting or other business purposes? 
• How can policies, practices, and agreements (non-competes, confidentiality and non-disclosure agreements) impact ownership? 
• How has the public availability of contact information (LinkedIn, Twitter, ZoomInfo, etc.) impacted the ability to claim customer lists are confidential? 
• What has happened to the definition of “non-solicitation” with the use of social media?  Has it changed? 
• How should a recruiting manager or firm owner address linking to vendors, customers, and competitors in a competitive environment?

We’re going to run a series of posts to address these topics in more detail.  Our first topic? 

Who “owns” social media content, contacts, etc. and how do employee policies fit in?

The answer to who “owns” social media is not clear cut and the law in this area is not well developed.  Additionally a lot will likely hinge on how the employer has (or has not) managed ownership of social media.  Employee policies are a key element of this process.  

Your policies should address, among other things, whether employees are permitted to upload Outlook contacts, or other contacts from your contact management system into LinkedIn, Facebook, or Twitter.  These sites make it very easy for you to use existing databases to find contacts. However, if you allow employees to upload contacts to LinkedIn, Facebook, etc., you have then permitted employees to take and save an entire database of contact information, into an account that was created, maintained and possibly “owned” by them personally. 

This raises the question about who should then own that account when the employee leaves.  This also may call into question your ability to later claim that this information is confidential.  It is critical that these issues are taken into consideration and addressed in employee policies.  Otherwise, you may be in the situation where your employees’ actions have dictated ownership of social media in a way that does not serve the company’s best interests.

While employee policies are one key piece in managing ownership of social media connections, another key piece is confidentiality, non-disclosure, non-compete and other employment agreements.  We’ll discuss this piece in our next post.  Stay tuned! 

In the meantime … Do your policies address these key social media issues?  How does your company balance the need to protect customer information with the increasing pressure to be “out there” on social media?