Advertising Law Blog

Many companies now have Twitter, Facebook and LinkedIn accounts that are used by their employees to post various information regarding the goods or services of the company. What happens when an employee amasses numerous "followers" on Twitter and then leaves the company and begins "tweeting" for a competitor? Can the employee take the Twitter account with him? Who owns the rights to the "followers"?

These issues are being decided by a court in the Northern District of California in a matter entitled

PhoneDog v. Kravitz. There are no clear-cut answers to these questions yet, but there appear to be a number of actions an employer can take to protect itself; actions that were seemingly not taken by PhoneDog.

In the PhoneDog case, Noah Kravitz, a former employee, was hired by PhoneDog as a product reviewer and video blogger. Kravitz maintained a Twitter account "@PhoneDog_Noah" through which Kravitz eventually had 17,000 "followers." When Kravitz left his employment at PhoneDog, he changed his Twitter name to "@noahkravitz", keeping all 17,000 followers and using the account to promote himself as well as a PhoneDog competitor. PhoneDog sued Kravitz for, among other things, misappropriation of trade secrets and conversion. Kravitz sought to dismiss the case entirely, and while the court dismissed certain of PhoneDog's claims, it allowed the misappropriation and conversion claims to proceed. The court will now decide whether PhoneDog owns the Twitter accounts used by its employees, and if so, whether Kravitz's continued use of the account after the end of his employment constitutes a misappropriation of trade secrets and/or conversion.

Although the matter has not yet been decided, and it is unclear what the ultimate outcome of the case will be, it seems that an employer can take some actions now to protect itself. First and foremost, a company should have clear social media policies that allow the company to monitor and control what is being posted on behalf of the company. In addition, a company should have written employment agreements with its employees who use social media on behalf of the company, outlining the social media policy and making it clear that the social media accounts, logins and passwords all belong to the company and must be relinquished by the employee if the employee leaves or employment is terminated. A company should also prohibit its employees from using the company's social media sites to post information or content that is unrelated to the company. Finally, it is very important for companies to take adequate steps to protect their intellectual property so that the same cannot be misused by employees or others.

In summary, as more and more companies are using social media as a means to promote their goods and services, it is critical that company-related social media sites be treated like any other piece of valuable company property. Namely, appropriate steps must be taken to make sure that the company will own and control these sites.