Lisa McGrath, The Daily Record Newswire
In 2006, PhoneDog Media LLC, a mobile phone website, hired Noah Kravitz to tweet on behalf of PhoneDog from the Twitter account, @Phonedog_Noah. The account amassed more than 17,000 followers in nearly four years. When Kravitz left PhoneDog in 2010, he changed his Twitter handle to @NoahKravitz and took with him most of the account’s followers, most of whom were customers of PhoneDog.
PhoneDog later sued Kravitz for ownership of the account, alleging $340,000 in damages. After a costly legal dispute lasting a year and a half, the parties settled for an undisclosed sum, with Kravitz ultimately retaining custody of the account.
In a 2013 survey by Deloitte, business executives from 300 major companies said social media posed the greatest risk to their businesses. One such risk is the unsettled legal question of who owns a company’s social media accounts — the employer or employee?
And perhaps more than the risk of litigation associated with the issue of social media account ownership is that of brand damage.
Consider Black Entertainment Television’s Facebook fan page for The Game. In 2008, BET hired social media freelancer Stacey Mattocks to run a Facebook fan page for the popular show. Between 2008 and 2012, BET and Mattocks fought over the ownership of the Facebook page. When Mattocks refused to transfer ownership of the fan page to BET in 2012, had the page suspended, Mattocks sued, and the show’s 6.2 million Facebook fans were left in the dark.
Take former New York Times Assistant Managing Editor Jim Roberts. In January 2013, Roberts accepted a buyout, agreeing to leave the newspaper. Known for trailblazing social media at the New York Times, when Roberts was asked about the future of his Twitter account, he tweeted, “My feed is my own.” Shortly thereafter, Roberts changed his twitter handle from @nytjim to @nycjim and walked out the door wiyh more than 77,000 followers.
The New York Times’ response to the question of social media account ownership encapsulates most companies’ problematic approach to the issue: “There is no specific policy in place that covers this kind of situation.”
And while companies parse complicated legal arguments in expensive lawsuits over social media accounts, the solution is simple: Draft employee agreements and social media policies to include language specifying ownership of accounts. In fact, employee agreements are the only thing courts have definitively upheld regarding social media account ownership. In 2012, in Ardis Health LLC v. Nankivell, a federal court granted a preliminary injunction on the basis of an employee agreement, requiring the employee to provide the employer with access to social media accounts and passwords.
Provisions effective employee agreements and social media policies should contain on this topic include:
• Ownership of social media accounts and content
• Access, passwords and logins in compliance with state “password laws” that prohibit employers from requiring employees to provide access to social media accounts
• Confidentiality and trade secrets that comply with Section 7 of the National Labor Relations Act, which protects employees’ right to concerted activity
• Privacy
Implementing employee agreements and social media policies with provisions regarding social media account ownership — and training employees on it — is the first step toward avoiding litigation and protecting your brand in the competitive social media marketplace.
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Lisa McGrath is president of lisa mcgrath LLC, a new media law firm that focuses on solving legal issues related to social media, the Internet, advertising and mobile apps. She is a member of Harvard University’s Berkman Center Online Media Legal Network and provides legal compliance services to organizations including financial, health care, government and advertising. She can be reached at lisamcgrathllc.com
