Social-media accounts like Twitter, Facebook, Google Plus and LinkedIn are relatively recent means of communication. Such an account, which operates roughly like an individual’s mini-website on which information is exchanged with other people, is often for exclusively personal use. Increasingly though, businesses are using social media to promote or represent the faces of their enterprises, or even to fulfill specific commercial communications functions.
Even more confusing, a social-media account’s dedicated use could be blended. Who would “own” an account when its only user is an individual, but that person uses it both for personal contacts, as well as to promote or represent his or her employer? Issues of ownership and business interest in social media will increasingly end up in court as the applicable law evolves.
Enter writer Noah Kravitz; his former employer PhoneDog, LLC, an online provider of mobile phone news and reviews; and a Twitter account with 17,000 followers that Kravitz developed while working for PhoneDog with the username Phonedog_Noah.
When Kravitz left PhoneDog, he took the Twitter account with him. The New York Times reports that he said his employer was fine with him taking it so long as he tweeted (sent short messages) “on their behalf” occasionally. He reportedly kept the account active under the username NoahKravitz, and less than a year later, PhoneDog sued him in federal court in California for $340,000 in damages.
This apparently happened after Kravitz filed a lawsuit in California state court to collect money from PhoneDog he claims it owed him. Kravitz reportedly now works for a competitor of PhoneDog.
According to PhoneDog’s suit, the company makes money by accepting advertisements for its main website, and advertisers pay a set amount per every thousand page views of the site. PhoneDog’s employees use Twitter to send out tweets with information and links back to PhoneDog’s site, thereby driving Internet traffic there and increasing advertising revenue.
PhoneDog alleges that it had asked Kravitz to stop using the account and accuses him of:
- Trade secret misappropriation
- Intentional and negligent interference with prospective economic advantage
The complaint explains how PhoneDog came up with $340,000 in damages: $2.50 per month for the value of each Twitter follower per “industry standards,” multiplied against 17,000 Twitter followers, for eight months.
PhoneDog also asks the court for many other items of relief in this litigation, including:
- That Kravitz be ordered not to communicate with or solicit PhoneDog customers, use its confidential information or destroy related documents
- That Kravitz be ordered to return “confidential information”
- That Kravitz be ordered to pay punitive damages (to punish him for his actions)
- That Kravitz be ordered to pay general damages or royalties
- That Kravitz be ordered to pay PhoneDog’s attorneys fees, costs and interest
- That Kravitz be ordered to pay PhoneDog the value of “property converted”
Kravitz filed a long answer to PhoneDog’s suit wherein he denied most of the factual allegations and legal claims. Of particular interest, he asserts:
- That he completely controlled the account and wrote all the content; and that more than half of the tweets he made had nothing to do with PhoneDog, but were instead personal
- That neither the account followers’ names nor the password were trade secrets
- That he changed his handle and the password to the account after leaving PhoneDog
- That PhoneDog consented to his continuing to use the Twitter account until he sued PhoneDog
- That under the terms of the Twitter account, PhoneDog could not “own” it
In addition, Kravitz asserts several legal defenses and countersues for:
- Declaratory judgment that he has the right to use the account
- Promissory estoppel that he relied to his detriment on PhoneDog’s statements, causing injury to his reputation
- Negligent misrepresentation
- Unauthorized use of his likeness
Finally, Kravitz asks for several things from the court, including:
- That PhoneDog be ordered to stop using his picture
- That Kravitz be given the right to use the Twitter account or if not, that he be reimbursed for building the Twitter following
- That he be awarded damages, costs and attorneys fees
PhoneDog v. Kravitz is being closely watched to see how the court will decide important issues of social-media ownership. If you or your business faces similar legal issues, speak with an experienced litigation attorney about your rights and potential remedies.