Who owns your Twitter followers?

At first blush, this seems a relatively straight forward question to answer in a legal context.  However, when you add into the mix a company-run twitter account, differing employment arrangements, lack of a commercial agreement between the parties, revenues generated off the back of a Twitter following, blog traffic and advertising revenues that rely on said traffic and many other nuances, the situation gets messy. And emotional.

Given increased litigation in the “new media” or social media space, the legal answer to this question is likely to set important precedent going forward, globally.  Internet or cyber law jurisprudence is developing rapidly and jurisdictional differences notwithstanding, many countries (Australia, UK, New Zealand, USA, South Africa, Canada, amongst others) are adopting similar approaches.  This is particularly evident in the area of service of legal proceedings via social media, where most jurisdictions are adopting a similar approach.

Professional social media tools such as LinkedIn and Twitter have blurred the lines between business and personal use.  The tools can be used exclusively for either, or both.  Increasingly, the latter is the preferred approach utilized by various industries.  This creates an ownership issue around the social media following, an issue which appears to be getting more prevalent.

The typical scenario is one much like this: A blogger, writer, editor, etc. is hired by a company, or as part of an existing responsibility is assigned the “control” over the company Twitter account.  After a period of witty and intelligent posts or tweets the company Twitter account enjoys a large following.  The writer leaves the employment of the company and carries on tweeting from the account that was previously used while in the employ of the company.  Enter the scorned company who feel a right to the rolodex of the 21st century, the social media contacts or followers.  The debate usually results in protracted litigation, where precedent is few and far between and the only winners are probably the lawyers who are billing hours merrily. And, those of us who enjoy writing about this stuff…

The scenario painted above is further exacerbated by the fact that e-commerce revenues are, in most instances, directly related to the amount of web traffic an e-commerce site/platform generates. If a company loses a large base of followers, or potential advertising revenue, it is going to be pretty upset. A further complication is that in many instances, the ex-employee will leave to work for competition or to compete with the company on his or her own. So, let’s return to the original question – who owns your Twitter followers?

This is the question currently before the United States District Court in the Northern District of California in the matter of PhoneDog v. Kravitz, as initially reported by the New York Times.  In summary, Noah Kravitz, an ex-employee of the popular mobile phone tech blog Phonedog.com,  was sued for damages by Phonedog as a result of the 17 000 followers he left the company with under the Twitter handle, @PhoneDog_Noah. 

Kravitz was a product reviewer for Phonedog and upon his resignation he was asked to return the Twitter account. He refused and instead changed the handle to @Noahkravitz and as at 14 November 2012, the account is still live and has 23 414 followers.  Phonedog alleges the following:

1.       misappropriation of trade secrets;

2.       intentional interference with prospective economic advantage;

3.       negligent interference of prospective economic advantage; and

4.       conversion (of the Twitter account).

The damages calculation is based on $2.50 per month, per follower, a rate Phonedog claim is the industry norm. That is debateable and is probably an argument all on its own, best left for another day.

Ultimately, the matter has not been decided and Kravitz has been largely unsuccessful in attempting to dismiss the claims on technical legal grounds. The pre-trial motions were dismissed earlier this year and the matter will proceed, giving us an interesting view or legal precedent on ownership of Twitter followers.  The legal documents (pleadings) relating to this case can be accessed via the insightful Technology and Marketing blog of Professor Eric Goldman. On the issue of an employee leaving an employer with Twitter followers, see also the CNN matter of ex-anchor Rich Sanchez.

Similarly, in the recent matter of Eagle v. Morgan, a flurry of litigation followed the collapse of a new business venture.  For our purposes, the important point to take from this case is that the erstwhile employee was sued for, amongst others, the return of a LinikedIn account.

As with the Phonedog matter, the final outcome is yet to be decided on all the issues, but the United States District Court for the Eastern District of Pennsylvania denied the employee’s motion to dismiss the company’s claims that she stole LinkedIn account connections and content after her employment was terminated.  In permitting the case to proceed, the court is essentially confirming that corporate personnel (in addition to the employee) had developed and maintained the LinkedIn account. Again, this matter will create important global precedent going forward.   

Typically then, as the situation stands, the user who owns and controls the account will own the followers.  Deviation from the default will only arise in situations where it is contractually provided for or a following is cultivated in such a manner that it can be construed as a company resource (such as the Phonedog case). But even then, it appears difficult for the company to assert ownership over the followers and it may only be permitted to ask for copies of the records of the social media tool, i.e.: all the followers’ names, etc.

So, practically, what should a company or individual do to protect this new resource?

1.      Contractually, this should be provided for in an employment agreement, contractor agreement or part of a joint venture agreement.  In whatever guise you decide to put it in, it is imperative that this is agreed upon up front to avoid litigation and emotional heart ache down the line;

2.       A robust social media policy that clearly defines ownership and control;

3.      Appropriate registration and protection of all intellectual property or proprietary information;

4.       Management and enforcement of the social media contractual provisions or policies.

The company of today views Twitter and LinkedIn followers as the new-age rolodex.  In my view, as a default position, one may ask for a copy of all contacts that were being used in a company environment on Twitter or LinkedIn.  One should not be permitted to take “back” control of the account, as it is, in most instances, personal in nature. Of course, the onus will rest with the company to show that the account is not personal in nature and that it was used, primarily, to cultivate business relationships.  The company would probably also have to show that more than one user accessed and cultivated the account and that the concomitant followers were directly related to revenue streams associated with advertising and the like.

Many have dispensed similar advice, and it is interesting to note that the American Bar Association have amended their model professional rules of conduct to, amongst other things, broaden the definition of “communication” to include social media.  We are moving forward. It is now incumbent upon all attorneys to be proficient in the social media space and have, at the very least, an understanding of the various platforms, how they work and the legal risk associated therewith. We can no longer ignore this tidal wave of communication and cast it as a “generational thing”.

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