Facebook and Twitter are increasingly becoming the American public’s main source for news.
With 63 percent of Facebook and Twitter users claiming they use these sites as news sources, it comes as no surprise that a company’s social media presence is continuously being monitored, updated and utilized as a client engagement and public relations tool.
With that said, what happens when the person handling your social media presence quits, takes an extended leave or is fired? If your PR pro or marketing guru has been using his or her name own social media account or personally created a media account to generate buzz about your company, you could find yourself “friendless” if you haven’t set out a clear social media ownership policy.
Typically, “ownership” litigation over social media accounts has been cast in state law claims of conversion, misappropriation, unfair competition and trade secret violations, with “followers” being treated as intangible property. Also, federal claims that have been raised allege a violation of the Computer Fraud and Abuse Act (CFAA) and identify theft.
The two most notable and headline-generating cases in recent years have been PhoneDog v. Kravitz (California, 2012, settled out-of-court) and Eagle v. Morgan (Pennsylvania, 2013). Although both cases have resulted in more questions than answers, some key lessons have been learned about what courts tend to look at in these types of cases.
PhoneDog v. Kravitz
In PhoneDog, the company’s product reviewer and video blogger, Noah Kravitz, was in charge of submitting written and video content to PhoneDog’s website and Twitter handle. When posting company related information, Kravitz used the Twitter handle “@PhoneDog_Noah,” which PhoneDog alleged was the routine company practice for any company-related posts (i.e. “@PhoneDog_Name”).
Eventually, Kravitz and PhoneDog parted ways, @PhoneDog_Noah had approximately 17,000 Twitter followers. PhoneDog requested that Kravitz stop using the “@PhoneDog_Noah” account, and in response, Kravitz changed the account handle to “@noahkravitz,” continued to use the account, and took all of the accounts original followers with him.
PhoneDog’s most relevant claims against Kravitz were for misappropriation of a trade secret and conversion and they estimated damages on a per-follower basis, claiming that the “industry standard” for each twitter follower was worth $2.50/month. This “calculation” marked the first time a monetary value had been assigned to each twitter follower.
In the end, PhoneDog and Kravitz came to a mutual, private settlement, but the lesson learned came down to this: establishing a social media ownership policy during employee onboarding or when an employee is given authority to use social media in connection with the company is imperative.
Eagle v. Morgan
The Eagle v. Morgan case poses a different issue. In Eagle, Linda Eagle was the co-founder and CEO of Edcomm. During her tenure, Edcomm had encouraged its employee’s to create LinkedIn accounts and use them as a networking and sales tool.
Shortly after Eagle’s termination in 2011, Edcomm personnel with access to Linda Eagle’s account and passwords (which Eagle had given access to) logged-in to her account, changed her log-in credentials and replaced her name and photo with that of Eagle’s replacement, Sandy Morgan. Eagle sued for both state and federal claims.
In particular, her claims based on invasion of privacy by misappropriation of identity and publicity, tortious interference with a contract, and identity theft claims were the most hotly argued before the U.S. District Court for the Eastern District of Pennsylvania.
Summary Judgment was granted in favor of Morgan & Edcomm for the federal Computer Fraud and Abuse Act and Lanham Act claims, but Eagle was successful in proving her invasion of privacy, misappropriation of identity and identity theft based on unauthorized use of name claims.
Although Eagle was victorious, in the end, the court found that Eagle had failed to plead damages with certainty, as even her own experts admitted to taking an educated guess regarding the annual revenue generated by Eagle’s LinkedIn contacts, and therefore, she could not recover monetary damages.
The lesson the social media community took away from Eagle: Companies must (a) implement a social media ownership policy across the board for any social media used by their employees in the context of sales or marketing; and (b) sales or leads generated through social media should be tracked in terms of dollars and cents in order to better prove damages should they ever be in this type of ordeal before a court.
Related Article: Are Hashtags Intellectual Property?
Questions to Consider
So now that it is clear that a “social media ownership” policy is the best way to cover your virtual behind, what areas should you address in such a policy? For starters, some of the important areas to cover are:
- Disclosure of any User Account Name and Password made for the Company or for the express purpose of generating sales, promoting press releases, or announcing product launches, etc.
- Will the Account be created using the Employee +Company Name or just the Company Name?
- Name Identifying handles? Company identifying handles?
- Ex. @FirstNameLastName or @CompanyName_PR or @CompanyName_EmployeeName
- Name Identifying handles? Company identifying handles?
- Description of the Company’s policy on what news or content will be posted and how it will be posted?
- Can employees use their own personal accounts to promote press releases, product launches, network?
- Agreement on “who owns” followers, friends, contacts – make this a bold statement disclaiming who owns what.
- Procedure for handling the exchange of a social media account during an employee and company separation.
With more and more companies depending on Twitter, Facebook, LinkedIn, YouTube and Instagram to connect with their customers and post promotional advertisements, press releases and sweepstakes, the lessons from PhoneDog and Eagle are not to be ignored.
For more advice on instituting a policy, contact your attorney; not doing so could land your company in the “no-friend zone.”