In-Depth Look: "Tweeting" at the Office: The Dangers of Mixing Electronic Social Media with Workplace Activity

Monday, March 26th 2012 by Tyler Hill
 
Abstract
            The advent of social media in the workplace has triggered a host of newfound legal ambiguities that most recently have been illuminated in Phonedog v. Kravitz, a case that addresses the issue of who bears property rights in a Twitter account that was operated by an employee, yet for the use of that employee’s business.  Upon turning to Intellectual Property law and analogizing Twitter accounts to other online social media outlets such as Linkedin, this analysis argues that the purpose for which an online social media account was opened for is the driving factor in resolving the ownership debate.  Furthermore, in response to the trade secrets claim brought in Phonedog, it is argued that social media account assets such as Twitter “followers” necessarily cannot constitute trade secrets when made viewable on the worldwide web.

Introduction

Social media accounts have evolved into a forum for companies to use to recruit and interact with clients and prospective customers.  As a result, the ownership rights over social network tools such as Twitterand Facebook[1] accounts have triggered previously unrealized legal significance.  Specifically, who bears a property interest in a social media account that was used by an employee of a Limited Liability Company (LLC) for that corporate entity’s business purpose, when that employee departs from the company?
The U.S. District Court of Northern California faces this issue in PhoneDog v. Kravitz,[2] a case where Phonedog Media LLC (“Phonedog”), a mobile phone retailer, sued Mr. Noah Kravitz, a former employee of Phonedog, over ownership rights of a Twitter account after he left the company.[3]  Central to Phonedog’s allegations stand two issues: i.) Who bears a property interest in a social media account that was managed by an employee of an LLC, but was used for business purposes?  ii) Do social media account assets such as Twitter followers constitute a trade secret?

II. Ownership Rights Over Social Media Accounts

            The underlying purpose for which the social media account was created is the determinative factor for resolving the ownership question.[4]  Accordingly, since the Twitter account was opened for the purpose of furthering the business objectives of Phonedog LLC, Phonedog is the bona fide owner of the account.
Ultimately, Mr. Kravitz responds to the “purpose” argument by stating that he used the Twitter account for both business as well as personal uses.[5]  As logic dictates, however, subsequent use of a tool (here, a social media account) cannot alter the purpose for which that tool was originally created.  To do so would mean conflating “purpose” with “use.”

III. Trade Secrets

            Phonedog also alleges that Twitter followers are trade secrets, which Mr. Kravitz misappropriated by continuing to use the account following his departure from the company.[6] In order for information to constitute a trade secret, it must derive independent economic value by virtue of not being known by the general public.[7]
Similar to client lists, Twitter followers can bear value in the sense that they give rise to business opportunities.  However, unlike client contacts which are tucked safely away in rolodexes, Twitter followers are available for Twitter users to casually view.  In other words, Mr. Kravtiz’s Twitter followers are made known to the general public, and thus cannot be trade secrets.

Conclusion

            For the reasons stated, Phonedog stands likely to be awarded ownership rights over the Twitter account since it was created for the purpose of advancing the company’s interests.  Nevertheless, the followers on that Account do not constitute trade secrets because they are made knowable to the general public.  Most importantly, for the corporate onlookers hoping to avoid such legal disputes, companies should establish corporate policies that clearly state that any social media accounts used at the workplace on behalf of the company are property of the business, not its user.

[1] Twitter and Facebook are both user-interactive social network websites that help to connect people through the worldwide web.  Twitter defines itself as a “real-time information network,” which connects Twitter users with “small bursts of information called Tweets.”  See Twitter, About Twitter (last visited Jan. 15, 2012), http://twitter.com/about [hereinafter Twitter].  Similarly, Facebook purports its function to be to “help[] you connect and share with the people in your life.” See Facebook, About Facebook (last visited Jan. 15, 2012), http://www.facebook.com/facebook [hereinafter Facebook].
[3] Id.
[4] Timothy McCormack, What Companies and Employees Need to Know About Its Social Media Assets Like Twitter, Facebook, Google+, SeattlePi (Jan. 5, 2012 at 10:14AM),http://blog.seattlepi.com/timothymccormack/2012/01/05/copyright-cow-comments-of-phonedog-case/.
[5] McCormack, supra note 16 (“Mr. Kravitz told CNN that he opened the account, linked it to his personal e-mail address and maintained it himself while tweeting both personal and professional things throughout his employment with PhoneDog, including links to his own articles and colleagues’ articles, as well as tweets about sports, arts, and food.”).
[6] Phonedog, 2011 U.S. Dist. LEXIS 129229 at 15-20.
[7] Cal Civ Code § 3426.1, sec. d 1-2 (Deering 2012).