These days, many companies employ social media specialists, whose jobs include posting about the company — or on its behalf — on sites like FaceBook and Twitter. If the account is in the company’s name, and employees post only on company time and only on company topics, it seems clear that the account belongs to the company. Among other things, this means the company retains the account when the employee leaves, along with all those followers and friends.
But what if the employee posts in his or her own name, blending professional and personal in the manner that seems to define our age? What if the employee’s personality and personal posts are the very things that attract an audience? What if the employee brings a popular personal account to the company — or is hired precisely because the company wants access to the employee’s existing followers? Who owns the account then? And what’s a Twitter account worth, anyway?
Some of these questions may be answered by a lawsuit filed by PhoneDog, a mobile phone website, against Noah Kravitz, its former employee. While employed, Kravitz began tweeting as PhoneDog_Noah, posting comments about personal interests as well as professional issues. According to news reports, Kravitz says he opened the account himself and linked it to his personal email. During the course of his employment, Kravitz reached 17,000 followers.
When he left PhoneDog, Kravitz says the company told him he could keep the account in exchange for posting occasionally about the company; Kravitz agreed. He changed his handle to @NoahKravitz and tweeted on. In July, however, PhoneDog filed a lawsuit, claiming that Kravitz’s Twitter followers were essentially a customer list, and therefore a PhoneDog trade secret that Kravitz had misappropriated. (Kravitz claims that the trade secret lawsuit is in retaliation for his claim that the company owed him back pay and a percentage of the site’s advertising revenue.) The company is seeking damages to the tune of $2.50 per follower per month, which adds up to $340,000.
The outcome of the case will turn, in part, on the factual dispute over whether or not PhoneDog told Kravitz he could keep the account. To win a trade secret case, an employer has to show that it took steps to maintain the confidentiality of the information claimed to be secret. Allowing someone else to take and use that information would undermine this argument. And of course, IP experts are very interested in how the court will value each Twitter follower, if damages come into play. I’m not sure where that $2.50 figure came from, but it’s notoriously difficult for courts to put a value on good will and reputation, which the company claims were damaged here.
Another thing that interests me about the case is the personal angle. Under traditional employment law principles, the employer owns what the employee creates as part of his or her job . But what if part of the employee’s “creation” is the employee’s personality? Experts tell us that social media works best precisely when it’s personal: when there’s an actual voice and character the audience can identify with, rather than a relentless barrage of faceless corporate pronouncements. (In fact, Kravitz attributes his popularity to the fact that his feed combines professional comments with personal posts.) At some point, does all of that personality become something that the company can’t really own? If someone like Kravitz counts his own family and (actual) friends as followers, features his photo prominently on his Twitter feed, and posts personal information, from his love of certain sports teams and restaurants to pictures of his vacations, can all that really “belong” to his employer? I don’t know the answer, but it’s just one more way that Web 2.0 is challenging existing legal doctrines.