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Another Facebook Case, Another Lesson Learned
There is no shortage of recent court rulings dealing with implications and consequences of social media. One of the latest comes from a New Jersey federal court and its holding should get employers’ attention. In Gatto v. United Airlines and Allied Aviation Servs., et al., No 10-CV-1090 (D.N.J., March 25, 2013), the plaintiff, Frank Gatto, was employed as a ground operations supervisor at John F. Kennedy Airport. He brought suit against United Airlines claiming that, while he was unloading baggage, a United Airlines aircraft caused a set of fueler stairs (owned by Allied Aviation) to crash into him. Gatto claimed that the resulting injuries rendered him permanently disabled.
After the suit was filed, the defendants made a request for documents and information that related to Gatto’s social media account. The request was based on defendants’ suspicion that Gatto’s Facebook posts detailed physical and social activities that would be inconsistent with his claimed injuries and damages. Gatto refused to comply with the request and a U.S. Magistrate Judge ordered him to execute an authorization for the release of his Facebook records and provide access to the account by disclosing his password to defendants.
Counsel for United thereafter accessed the account and printed portions of Gatto’s Facebook page. This action prompted Facebook to send a notification to Gatto advising him that his account had been accessed from an unfamiliar IP address. Upon notification, Gatto proceeded to deactivate his account. Facebook permanently deleted the data fourteen days later, in accordance with its company policy.
Defendants asked for sanctions against Gatto for purposely deleting evidence. So, how did the court rule on this matter? Did Gatto intentionally destroy the evidence of his social media accounts? Did the employer have a right to ask for it? Check back on Wednesday to learn about the court’s ruling.
Jaron Blandford is a member of McBrayer, McGinnis, Leslie & Kirkland, PLLC and is located in the firm’s Lexington office. Mr. Blandford focuses his practice on civil litigation with an emphasis in all areas of labor and employment law. He can be reached at jblandford@mmlk.com or (859) 231-8780.
Internet Defamation—What Can You Do When You Are the Target?
We’ve all seen them. Anonymous spewing hate-filled, defamatory statements on Facebook and Twitter, as well as in the comment pages of news stories on both local and national news. The commenters have a certain entertainment value, until you or your business are in their sights. So what do you do? The answer is not always so simple, especially when you don’t even know who is speaking.
Internet freedom has allowed for an unprecedented expansion in opportunities for the Average Joe to speak, but that expansion has come with a price for those defamed on the internet. In order to foster a free and expansive internet, in 1996 Congress enacted Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Section 230 grants interactive internet service providers (such as Facebook, Yelp, YouTube, and Twitter) immunity from civil defamation claims for user-created content.
There are very few exceptions to Section 230 immunity, with the only one recognized in case law being a case in which provider Roommates.com directed the posts to a certain extent using drop-down menus. See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). Providers have learned from Roommates.com’s example and are careful to maintain their Section 230 immunity.
What this means in simple terms is that if you or your business is defamed on Facebook or Twitter, you can’t sue Facebook or Twitter, and you can’t force Facebook or Twitter to remove the defamatory postings. Section 230 forces you to attempt to track down the user who originally posted the speech—often a virtual impossibility in this day and age when the vast majority of defamatory postings on the internet are done anonymously.
So what can you do? First, don’t give up on social media and its ability to deal with at least some of the problems. Interactive internet service providers are aware of the damage defamatory statements can do, and know that they risk losing their Section 230 immunity if they don’t self-police to a certain extent. All interactive internet service providers have terms of service, and the majority ban defamatory and harassing speech. Most will delete the offending material upon a showing that the material is indeed defamatory (i.e., not protected opinion), and most providers include a function allowing you to report the post directly from the webpage, without the need to send a demand letter from an attorney.
Furthermore, interactive internet service providers realize that though anonymity enjoys protections under the First Amendment, it also feeds a great deal of the ugliness seen on the internet today. Facebook, for instance, requires posters to use their real names, and if Facebook is informed that a person is using a pseudonym, Facebook will disable the account. Likewise, news sites are increasingly requiring commenters to link their comments to their Facebook accounts in order to provide a measure of accountability that anonymous posts lacked. YouTube also recently began asking posters to use real names, though that is not currently a requirement. Not all interactive internet service providers eschew anonymity – Twitter and Tumblr still tout the user’s ability to post anonymously – but increasing numbers of providers are requiring that speakers stand behind their comments.
If you can’t get posts removed through the interactive internet service provider, you still have legal options available. Of course, quite often the best action at this point is no action. Often defamation lawsuits are counterproductive in that they simply bring more attention to the posts than if the posts are simply ignored. While difficult to do, sometimes ignoring a simply nasty post is the best policy.
If the post can’t be ignored but is not worth litigation, you can engage with the poster on the interactive site. If someone posts a negative review on Yelp, address the review and contest any factual misrepresentations. If someone posts on your Facebook wall or sends an angry or defamatory Tweet, address the poster’s concerns. You have the right to speak too, and quite often thoughtful, careful engagement is the best remedy.
Some posts are simply so egregious and damaging that they must be addressed in a court of law. If action is warranted, and you are lucky enough to have the name of the poster, you can pursue traditional legal avenues available to victims of defamatory speech.
If you do not have the name, however, if you want to take action you will need to file a civil defamation lawsuit naming as defendant a John Doe. Unfortunately, even though many interactive internet service providers will remove defamatory posts upon request, none will give up the names, email addresses, or IP addresses of posters without a subpoena. Once litigation is filed, you and your legal counsel will have subpoena power to require the interactive internet service provider to give up the names, emails and IP addresses associated with the poster. Normally the providers will still put up a fight even in light of a subpoena, but this is the only way available to obtain the identity of an anonymous poster so that you can hold them responsible for their defamatory speech.
While we have the right to free speech in the United States, our laws require us to take responsibility for what we say when we are wrong and our speech causes damage. In the case of internet-based speech, it may be difficult to vindicate your rights and hold speakers responsible, but with persistence and a clear understanding of how interactive internet service providers work you can protect your good name on the internet.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Will a Savings Clause Save Your Social Media Policy?
Could a savings clause salvage an otherwise invalid social media policy? Maybe. There is no definitive answer to this question, as savings clauses have been portrayed as both a potential asset for employment handbooks and a non-factor in acting as a loophole for Section 7 of the National Labor Relations Act (NLRA). Thus, it is important to view savings clauses as one tool in your arsenal and not as a panacea for an overly-broad social media policy.
A well-written savings clause is a provision added to your employment handbook as a legal catchall disclaimer that informs employees that any and all rules encompassed in the company’s social media policy do not infringe upon the rights of employees to engage in group activity that is protected by federal law – i.e., the policy is not meant to discourage the activities protected by Section 7 of the NLRA. It seems these broad disclaimers, when coupled with a broadly written policy, may not be the answer.
As we discussed in NLRB and ALJ Decisions Continue to Refine Social Media Policy Parameters earlier this week, Administrative Law Judge Clifford H. Anderson ruled against EchoStar Corporation finding their social media policy restricting employees from making critical comments illegal, even though EchoStar’s handbook did have a savings clause. Prior to the EchoStar decision, the National Labor Relations Board (NLRB) issued its first decision and order on social media policies in the Costco Wholesale Corporation’s case. The NLRB found that the policy which prohibited employees from posting damaging comments about the company or employees that would be harmful to their reputations was unlawful. Both policies were found to be too broad and could lead to impeding employees’ rights to engage in protected concerted activities, as outlined in Section 7 of the National Labor Relations Act (NLRA). The Costco policy was criticized for not only being too broad, but also for not providing specific examples of activity that would constitute a violation. Essentially both decisions pressed for more specific terms in social media policies. Where they differ is in the existence of a savings clause. Costco did not include a savings clause in their employee handbook, and the NLRB indicated a possibility that a savings clause may have neutralized the policy’s shortcomings, whereas the EchoStar’s savings clause was not enough to protect the policy.
It is fairly clear by these two rulings that a savings clause is not going to fix an already flawed social media policy. That is not to say that you should not include one in your social media policy and employee handbook. Savings clauses are helpful and important disclaimers to have in general. However, it seems that both the social media policy and the savings clause need to be detailed in addressing the intended terms of the employer. Specific language is the key. Before updating or adding a savings clause to your handbook, have it reviewed by an attorney. Make sure that your social media policy includes examples of violations and precise language, and keep abreast of the developments in policy law, as it will likely continue to change as quickly as social media itself.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
NLRB and ALJ Decisions Continue to Refine Social Media Policy Parameters
National Labor Relations Board (NLRB) judgments continue to refine the parameters of the social media policies landscape, offering more insight for employers who are developing policies and procedures that attempt to protect both the company and the employees. Two recent decisions by the NLRB illuminate the legality of social media policies or policies addressing any and all electronic communications. These decisions further set expectations of what is acceptable online behavior by employees, and more clearly define what an employer can and cannot restrict in the language of the policy.
In September, the NLRB partially reversed an Administrative Law Judge’s (ALJ) 2010 decision against Costco Wholesale Corporation regarding their electronic communications policy. The NLRB held that the policy prohibiting employees from posting negative statements about the company online was a violation of Section 7 of the National Labor Relations Act (NLRA). The decision did not specifically mention social media nor was the recently released social media policy guidance referenced. However, it was clear that the issue at the center of this decision was online activity including social media.
On the heels of this NLRB decision, Administrative Law Judge Clifford H. Anderson ruled against EchoStar Corporation, in a similar case involving the restriction of employees making critical comments about the company on social media sites. The EchoStar policy broadly banned employees from “disparaging” comments and accessing social media sites with company resources on company time. In the ruling Judge Anderson found that an employee would reasonably interrupt “disparaging” as interference with Section 7 protected activities. As well, the ban on accessing social media sites on “company time,” was too all-encompassing and could include smart phones and employee’s personal time such as breaks and lunch.
In the Costco case, the NLRB cited the fact Costco’s policy contained no savings clause protecting Section 7 activities, suggesting that the decision might have been different if such a clause had been included. However, EchoStar did have a savings clause included in their employee handbook, which Judge Anderson did not think would counteract the language in the EchoStar policy. So, this begs the question: what are savings clauses and are they helpful in protecting employers carefully developed policies and procedures? It is a subject worth exploring. We will discuss savings clauses on Friday in relation to these cases and your own electronic communication policy. However, what we take away from these recent decisions is again, social media policies need to be clear and concise. Over-broad generalizations make policies vague and leave too much for interpretation, and it is obvious from these rulings that broad social media and electronic communications policies will fail in front of the NLRB.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Social Media: The New Harassment Landscape Continued
A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine. With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.
Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies. For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not. Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.
Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct. Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.
The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case. Our attorneys have established a reputation for providing honest, practical advice. To discuss how best to develop policies that protect your business or address harassment that has already occurred, contact our attorneys today.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com
Social Media: The New Harassment Landscape
Social media is changing the landscape of the internal workplace, providing a new way for employees to socialize and interact with one another. The online workplace is rooted in conversation which is casual, revealing and often deeply personal. The direct connection of social media is akin to an invitation into your home. It allows co-workers to share in your personal life with an instant sense of closeness and propels the relationship forward quicker than a traditional office friendship. The boundaries of conduct can become easily blurred and potentially dangerous when this complicated overlapping of private and professional relationships intersect online. Whenever the parameters get ambiguous, the probability of inappropriate behavior occurring increases, creating a growing employer concern for protecting employees from the potential of social media harassment.
Employers need to understand that communications through all means, email, text messaging, instant messaging and social networks should be covered in the company harassment policy. Social media runs a very close second to person-to-person interaction in means of building relationships. Consider some of the most common social networking sites, Facebook, LinkedIn and Twitter. There seems to be little doubt that, when used properly, these platforms have great potential benefit for employers. The unusual point regarding social media is that an employee’s virtual comments, even those made in their own time, may constitute actionable harassment in the workplace.
Since Blakely v. Continental Airlines,741 A.2d 538 (N.J. 2000), there has been some debate as what out of work conduct can constitute harassment. In Blakely the Court indicated that a plaintiff can establish an actionable claim for harassment based upon electronic communications made outside the workplace if the electronic medium would be “the equivalent of a bulletin board in the pilot’s lounge.” Perhaps, in today’s market the employee lounge has been replaced by the smartphone and the bulletin board by Twitter. Recently, in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), the California Court of Appeals upheld a $1.6 million verdict against an employer and in favor of an employee who was being harassed by co-workers on a blog. The employee reported the harassment to his supervisor, who indicated that the complaint would be forwarded through the proper channels, but the employer failed to conduct any official investigation. Ultimately, the Court of Appeals determined it was proper to allow the jury to conclude that the employer was liable for harassment arising from a blog maintained by co-workers outside of the workplace because it was aware of the harassment and did not take action.
Check back on Friday as we continue to traverse this new harassment landscape.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com
Efforts to Restrict Employer Access to Social Media Passwords Pick Up Steam
Legislative efforts to prohibit employers and educational institutions from demanding social media passwords from applicants and employees picked up steam as California became the third state to pass such a law on Thursday, September 27, 2012. California joins Maryland and Illinois as states making this prohibition law, though none of the statutes have yet to go into effect.
The California statute prohibits employers asking for account passwords and from taking any adverse action, including discharge or refusal to hire, against an employee who refuses access to a social media account. The language of the statute appears to reach demands by employers to even review non-public social media posts without a password, such as an “over the shoulder” review at an employee’s desk, but the full contours of the law won’t be known until it is implemented.
In an interesting twist, the California law does not apply to devices issued by employers. So, if an employee accesses a personal social media account such as Facebook or Twitter on an employer-issued device. Thus, an employee who accesses a personal social media account on an employer-issued phone, tablet or laptop might be susceptible to a password demand.
In announcing the passage of the law – via social media, no less – Governor Brown of California emphasized that the law does not impact on employers’ existing rights and obligations to investigate workplace misconduct. For instance, if an employer has knowledge that an employee is harassing another employee via social media, the employer can’t use the new law as a shield to refuse to act. Employers must still abide by all workplace discrimination laws and provide a safe work environment for their employees.
At least twelve other states are considering similar laws, and similar bills have been introduced in both the U.S. House and Senate. Employers across the nation need to be aware of this trend.
If you have any questions regarding potential social privacy laws in your jurisdiction, give us a call.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Are Personal Emails Private in the Workplace?
Can companies monitor and read personal emails? While this is no longer a novel question, companies continue to struggle with finding ways to protect their ability to access and monitor employees’ email activity. A review of recent cases reminds us that while the answer is usually situational, the result almost always hinges on the strength and specificity of the company’s computer and email use policy.
In Stengart v. Loving Care Agency Inc LCA (NJ: Appellate Div. 2010) an employee sued the company for discrimination. After Stengart filed suit, the company retrieved emails sent from her personal, password-protected account. The messages had been automatically saved to Stengart’s browser’s cache, and were accessed when the company looked through her work laptop to review all of her saved files. The company introduced the emails at trial despite the fact that they contained conversations between Stengart and her attorney.
Stengart objected to the introduction of the emails, claiming a right to privacy and violation of the attorney-client privilege. The company argued that Stengart had no right to privacy because their computer use policy clearly stated that any and all employee activity on workplace computers could be monitored. The court disagreed with the company, however, and ruled in favor of the plaintiff on the basis that the policy did not expressly notify employees that the policy encompassed emails sent from personal accounts or that emails from personal accounts would be saved to the computer hard drive. The Court found, therefore, that Stengart had a “reasonable expectation of privacy” in the subject emails.
In contrast to the ruling in Stengart, Holmes v. Petrovich Development Co. (191 Cal.App.4th 1047 2011), offers an example of how a clear, well-written policy can protect a company’s interests. Here, the employee sued for discrimination regarding her pregnancy leave. In the process of gathering evidence for its defense, the company accessed emails between the plaintiff and her attorney that she sent from her work email. Holmes claimed violation of her attorney-client privilege, arguing that the messages were private and should therefore be protected. The company argued that because Holmes sent the emails from work, on a company computer and used a corporate email account, there was no legitimate expectation of privacy. Holmes had been advised that employees using company computers to create or maintain personal information or messages had “no expectation of privacy with respect to the message or the information.” The court agreed and ruled in favor of the company.
The distinguishing factors in these cases were clearly (i) the use of a company email account versus a personal email account and (ii) the presence of a clearly articulated policy notifying employees that they should have no expectation of privacy when sending or reading emails at work, using company equipment, or when accessing personal accounts at work or on work equipment.
The increasing ease of access to e-mail makes it ever more tempting for employees to log-on and check their personal accounts while at work or to misuse corporate accounts by sending personal emails during work hours. As technology develops and as employees find it easier to send personal emails, companies must continue to specifically evaluate and address computer use, including emails, as part of their policies. Doing so is vital to defining appropriate usage in order to assure protection for the company.
Similar concerns and cases arise in the context of employee texting. Check back on Friday when we discuss City of Ontario vs. Quon, and outline elements of a strong cell phone, internet, email and computer usage policy.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
Using Social Media to Assist With Crisis Management
It is hard to imagine a business or organization that has not had to deal with some sort of crisis that impacts, or has the potential to impact, its reputation. Social media, and the speed by which it can be used to spread information, has enormous potential to accelerate a reputational crisis. Conversely, social media can be one of your most valuable tools when it comes to crisis management. Your ability to manage a crisis may, however, be directly impacted by how prepared you are to utilize social media in a focused and comprehensive way when a crisis occurs.
There are some best practices your company or organization can put in place, to help make sure you are as prepared as possible to implement effective crisis management.
- Designate a social media spokesperson for your company or organization. It will be difficult for your company or organization to act quickly if you don’t know who is responsible for utilizing social media in a crisis situation. This person should understand the mission of your organization and your marketing strategy, and should be briefed on your strategic response to the particular crisis at hand. It is important that this person understand how to appropriately (and technically) use all forms of social media utilized by your company or organization. Effective crisis management via social media will be nearly impossible if they are learning the ropes in the middle of a crisis.
- Make sure that your social media communications are appropriately informed. Get the right people involved to make sure your message is accurate and contains the appropriate expertise. Managing a crisis effectively may require that you provide your customers and/or the public with detailed information about your product, your company, or about the particular situation that created the crisis. You may also be required to respond to a complaint, negative feedback or negative press in a way that solves a specific, or even technical, problem. Though it is important to know who is responsible for posting or drafting social media content, it is even more important that you make sure the information you are putting out there is accurate. The reaction from an inaccurate or uninformed response can make your crisis management efforts futile, or even make the crisis worse.
- Use social media consistently. Don’t wait for a crisis. Certain crises may arise from, or be spread by, a third-party’s social media use. Thus, it is important to make sure you regularly monitor search engines, twitter, Facebook, online review sites, and other social media outlets for information about your company, so that you can react quickly. It is also important that you are getting your own marketing message out to your customers and the public consistently, and that you are amassing the followers you will need to reach in a crisis situation. Remember that certain social media content is now searchable via internet search engines (E.g. Google real time search results – last 24 hrs., 1 week, etc.). You can benefit from making sure that your content is what browsers see when they search for your company or organization.
- Make sure that your management and those responsible for responding to crises are properly trained. Over-reaction to a crisis, particularly one that starts or spreads via social media, can be as harmful to your reputation as the crisis itself. It is important that your management is trained on how to appropriately respond to a crisis (E.g. bad customer reviews, false information spread via social media, misuse or misappropriation of your company or organization’s trademarks, or complaints by your own employees). They should also be informed about any legal ramifications that could result from their reaction.
- Enact a concise social media policy that clarifies who may represent your company or organization via social media. Your crisis management plan could fall apart if you have multiple employees speaking on behalf of your company or organization via social media. Even when well intentioned, those employees may be off-message, and could make it more difficult for you to manage a crisis.
Social media can be a very useful tool in crisis management, but it is only as effective as you are prepared.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Who owns your Twitter account?
As more and more employees are tasked with — or even hired for the express purpose of — tweeting on behalf of their employer, it is important to think about ownership of the twitter account from which they tweet. A twitter account can be an important asset to a business or organization because the account (and the owner thereof) amasses followers who can become customers, fans and/or contributors. Those followers can also share the marketing and informative content your company or organization chooses to share with others by re-tweeting, liking or quoting your tweets, or by old-fashioned word-of-mouth. If they suddenly disappear, it may take significant time and effort to amass those followers again, and some you may never get back.
That is exactly what happened to a popular mobile phone company, PhoneDog Media. Noah Kravitz, created a twitter account on behalf of his employer, utilizing the handle @PhoneDog_Noah. From this account, he tweeted regularly regarding work and personal issues. Eventually he amassed over 17,000 followers over four years. At the time, PhoneDog did not have any policies in place that articulated whether Mr. Kravitz or PhoneDog owned the twitter account.
When Mr. Kravitz left his employment to join a competitor, he did not just abandon the twitter account and he did not provide the password to his successor at PhoneDog. Instead he simply changed his handle to @noahkravitz and continued using the account, maintaining his own personal and professional communications with his 17,000 followers.
In July 2010, PhoneDog filed suit against Kravitz, alleging misappropriation of trade secrets, interference with economic advantage and conversion. PhoneDog values its damages at $2.50 per follower per month (for eight months that Kravitz used the account for his own benefit), which amounts to $340,000.00 in damages. Regarding this value, PhoneDog has issued the following statement: “The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.
Kravitz tells a different story. He maintains that PhoneDog initially allowed him to maintain the account, asking him in exchange to tweet from time-to-time, and that he upheld his part of the bargain.
A U.S. District Court sitting in the Northern District of California has allowed Phone Dog’s claims, for the most part, to proceed on the merits. The Court recognized the twitter account at issue as a valuable property right. As this matter continues to be litigated it will be interesting to watch what value is ultimately placed on twitter followers, and who is ultimately granted ownership of the account. The case has potential implications for a number of employees who tweet on behalf of their employers, including newspapers and magazine writers who utilize their own likeness to amass readership via twitter.
In light of PhoneDog v. Kravitz, it may be time to look at whether your company or organization could benefit from a written policy with delineates who owns twitter handles and other social media accounts utilized by your employees to market your products or services.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
