“Businesses usually have their social media being managed by employees, independent contractors, or outside ‘experts’. The key to success with social media is to have many ‘connections’ with others and develop relationships with them. But, who really owns those connections and relationships? This is a question that has been brought to the forefront because of the recent lawsuit PhoneDog v. Kravitz that is pending in federal court in the Northern District of California.” (Your Business Needs a Social Media Policy And This Is Why by Shawn Tuma)
If you’re not following the PhoneDog v. Kravitz lawsuit, you should be. Noah Kravitz, a former PhoneDog employee, left the company and took his 17,000 Twitter followers with him. Eight months later, PhoneDog decided that those followers constitute a customer list worth $340,000, and filed a misappropriation of trade secrets lawsuit to compel Kravitz to pay up.
But whether PhoneDog or Kravitz prevails isn’t what important about this case, writes attorney Shawn Tuma:
“The issue is not, however, whether PhoneDog will win. The real issue is why is it even having to fight? Let’s assume for the sake of argument that it does win. At what cost will that victory come and, at that cost, will it truly be a victory? How much will it cost your business to win?” (Tuma, op. cit.)
So what’s a company to do?
1.Adopt a social media policy:
“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.” (Tuma, op. cit.)
2. Treat social media connections and followers like trade secrets:
“… reasonable measure[s] for protecting trade secrets … may include requiring personalized logins and passwords for users having access to the information; monitoring their access and use of the information; and terminating access when a user no longer needs access to the confidential information or their employment has been terminated.” (Do Your Social Media Accounts Belong To Your Business? Why Worry, When There Are Safeguards You Can Take Now by Sheppard Mullin Richter & Hampton LLP)
3. Execute a social media non-compete or confidentiality agreement with employees:
“With businesses actively encouraging their employees to use social media as a marketing tool, there can be little doubt that litigation over the ownership of social media accounts is likely to increase… The only way to avoid the inevitable lawsuits over the ownership of these accounts is for both employers and employees to be proactive in establishing ownership rights prior to using individual social media accounts as a marketing tool.” (Think You Own Your LinkedIn, Twitter and Facebook Account? Think Again by Nick Akerman)
- Who Owns Your Twitter Account, You or Your Boss? (Lawyers.com)
- Who Owns a Twitter Account? (Sands Anderson PC)
- Managing Employee Use of Social Media (Schwell Wimpfheimer & Associates LLP)
- Creating a Social Media Policy (Dinsmore & Shohl LLP)
- Your Social Media Policy May Need Revamping (Sheppard Mullin Richter & Hampton LLP)
- Social Media — Policies, Litigation, and Trends (Dickinson Wright)
- Develop Clear Policy for Employee Social Media Use (Fox Rothschild)
- NLRB Offers Useful Guidance for Employers In Summary Report on Social Media Cases (Franczek Radelet P.C.)
- You Can’t Say That! The Dangers of Overbroad Social Media Policies (Poyner Spruill LLP)
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