@Employer_vs._Employee_Trade_Secret_Lawsuit: ‘Wait, that’s my Twitter account!”

By: Shanna K. Sanders

As social media networks become an integral part of the lives and daily routines of more and more people and companies, the line between work life and personal life becomes more and more blurry. This disintegrating line creates potentially significant legal implications regarding the rights of employers versus employees vis-à-vis ownership and intellectual property associated with social media accounts. A recent case pending before the United States District Court for the Northern District of California, PhoneDog v. Noah Kravitz, deals with the familiar trade secret issue (ownership and appropriation of customer lists), but “tweets” it in a new context related to social media.

PhoneDog is an interactive website that reviews mobile phone products and services, and provides users with resources to research, compare prices, and shop from different mobile carriers. Defendant, Noah Kravitz, was an employee of PhoneDog, where he reviewed and offered his opinions regarding new mobile products. PhoneDog alleges that as part of Mr. Kravitz’s employment, he was given use of and maintained a Twitter account using the handle “@PhoneDog_Noah” (“the Twitter Account”). Mr. Kravitz would submit written and video content to the PhoneDog website, which he also transmitted to users via the Twitter Account. While employed at PhoneDog, Mr. Kravitz and his Twitter Account generated approximately 17,000 followers.

And here is where the line begins to blur. Mr. Kravitz alleges that while employed by PhoneDog, he linked the Twitter Account to his personal e-mail address and maintained it himself while tweeting both personal and professional things, including links to his own articles and colleagues’ articles, as well as tweets about sports, arts, and food. When Mr. Kravitz quit his job with PhoneDog in October 2010, he changed his Twitter handle to @noahkravitz, but continued to use the same Twitter account, effectively taking all 17,000 followers with him when he left. According to Mr Kravitz, when he left PhoneDog, the company had no policy in place for what should happen to the Twitter Account. Unhappy with the loss of 17,000 twitter followers, PhoneDog filed a lawsuit against Mr. Kravitz asserting (among other things) a claim for misappropriation of trade secrets.

According to PhoneDog, the Twitter Account and the list of followers, which are akin to a business customer list, as well as the password to that account, constitute proprietary, confidential information belonging to PhoneDog. PhoneDog alleges that each of Mr. Kravitz’s 17,000 Twitter followers is worth $2.50 for each month that Mr. Kravitz uses the Twitter Account after his departure from PhoneDog, which at the time the lawsuit was filed, amounted to $340,000 in damages.  Mr. Kravitz filed a motion to dismiss PhoneDog’s complaint, arguing that the followers of the Twitter Account are not secret because they are publicly available for all to see at all times. Further, Mr. Kravitz contended that the password to his Twitter account could not constitute a trade secret. The court was not convinced, and denied Mr. Kravitz’s motion to dismiss, finding that the complaint contains enough facts to state plausible legal claims, including for misappropriation of trade secrets.

Given the proliferation of social media networking and marketing, disputes over ownership and intellectual property associated with social media accounts will become more common.  As we await resolution of the PhoneDog case for guidance, employers and employees would be wise to preemptively address these issues in an employment contract or other type of agreement.