Who does a twitter account actually belong to, employee or employer? In a lawsuit brought by Phone Dog against its former employee, Noah Kravitz, Phone Dog is arguing to a California federal court that Noah’s twitter following belongs to Phone Dog. Phone Dog has valued the 17,000 on Noah’s twitter list at $42,500 ($2.50 per twitter “follower”), and has sued Noah for theft, interfering with its business relationships, and misappropriating its trade secrets.
The Phone Dog case is interesting because it does not involve a trademarked or copyrighted slogan, mark, or logo of the employer, Phone Dog. According to court documents, Noah worked for Phone Dog as a video blogger and reviewer of products. Apparently, as part of Noah’s work for Phone Dog, Noah collected more than 17,000 twitter followers. When Noah resigned his position in October of 2010, he changed his twitter handle from @PhoneDog_Noah to @noahkravitz. There is a disagreement between Noah and Phone Dog about whether Phone Dog ever asked Noah to give up his twitter account entirely. Phone Dog’s lawsuit was filed because Phone Dog believed that Noah was using his twitter account (with its 17,000 followers) to continue marketing and advertising on his own, to some of the outlets he had marketed and advertised to during his employment with Phone Dog, such as Fox News Live and CNBC’s Street Signs. There were no contracts or agreements between Noah and Phone Dog restricting him from using his twitter account post-departure.
The Phone Dog case is a good example of why it is a good idea for employers and employees to have clear expectations (and agreements) about the ownership of social media accounts, and whether collecting “friends” or “followers” is being done for the benefit of the company pursuant to job descriptions or expectations, or whether it is an independent venture of the individual employee, separate and distinct from his or her job duties. In this case, there seems to be fair arguments on both sides.
For Personal or Business Use? It is unclear whether Noah was pursuing twitter followers (arguably, we may never know whether followers sought to follow Noah the individual or “Noah the Phone Dog employee”) independently or as part of the practice as one of Phone Dog’s product reviewers and bloggers. Certainly, having a wide audience following was both favorable for Noah as well as Phone Dog.
Substantive Content. It is also unclear whether Noah’s tweets were in large part employment-related, in terms of content, or whether they conveyed personal messages. In taking a quick peek at the most recent ones, it appears that Noah tweets, and tweets often, about a variety of topics, not just those about his employment or Phone Dog:
What is the Proper Analogy? Another looming question that could be answered, if the Phone Dog case is assessed on its merits, is whether social media friends or followers are more akin to a company’s “customer lists,” which might be protected as a trade secret, or whether they are more similar to simply a list of contacts. After all, individuals who leave their employment to not “unlearn” their acquaintences, and barring non-solicitation or non-compete provisions in an employment agreement, are free to contact their list of contacts.
Public Relations Elements. For Phone Dog, an unintended consequence of the lawsuit may end up being bad publicity. Regardless of how meritorious their claims may be, to the public, it may simply appear to be a powerful employer flexing its muscles and intimidating a former employee, whether it is to set an example, or truly recover the Twitter “followers.” This would not be the first time a lawsuit in the technomedia space has generated more (negative) publicity than may have been desired.
For now, Noah’s legal team is attempting to have the case dismissed for failure to state a claim for relief. A hearing has been scheduled for the end of the month, so there may be new developments coming in the near future as this case marches forward.