Tweets Aren’t Trade Secrets

The explosive expansion of social media outlets such as Twitter, Facebook, and LinkedIn have given rise to numerous intellectual property issues, including the ownership and value of a “Friend,” “Like” or “Tweet.”  A recent case PhoneDog v. Noah Kravitz may address some of these issues.  In PhoneDog, a California Court is being asked to determine to what extent a company can cash in on, and claim ownership of, an employee’s social media account.  If the Court rules that the Company can’t, then the next question may be what value can an employee claim to posts to social media sites like Twitter, Facebook and Google Plus?  The employer in PhoneDog, claims that is the owner of an employee’s Twitter account, and that the list of people who followed the Twitter account are property of the employer.

There appears to be a large absence of any direct cases who have addressed this issue, however, this issue has been the subject of many disputes between departing employees and employers for some time.  Unfortunately, without any court ruling to provide precedence, it is unclear how the law will determine the ownership of various social media accounts.  Under traditional intellectual property laws, including copyright and trademark, the ownership of work created outside of an employment context is generally considered to be that of the “Artist,” the Tweet-er or Facebook-er.  If the work is prepared in the context of an employment relationship, it may be considered the property of the employer.  However, there is a gray line, in between these two, which may be addressed in PhoneDog. Some factors the court may consider may include whether an agreement denoting ownership existed.  In the absence of an agreement, the court may consider other factors including:  whose e-mail address was used to establish the account; was the account used primarily for the employer’s business; was updating the account one of the employee’s job responsibilities; and when and where the employee accessed the account.  In most cases, it is likely that courts will find the employer owns contacts or content created during or as a result of employment.

PhoneDog v. Noah Kravitz is also being closely followed because of the recent decision in Sasqua Group v. Courtney where the court ruled that an employer’s customer list was not a trade secret.  In Sasqua, the testimony of the ex-employee, was a factor for the court’s decision, most notably her response to what she would do if she had amnesia tomorrow and lost her blackberry.  Courtney, the ex-employee, explained how she could easily obtain all the information on the Internet through LinkedIn and Google searches.   In light of this the court concluded that the customer list information was publicly available and therefore, not a trade secret.  While PhoneDog differs in the respect that “Twitter followers” are at stake rather than a customer list, the court may be forced to compare the two and consider whether “Twitter followers” could ever be construed as a trade secret.

As the Internet grows, the amount of information that is publically accessible also continues to grow.  This may have an impact on the law of trade secrets, which traditionally covered things like customer lists.  As the court in Sasqua commented,

[t]he information in [the employer’s] database concerning … its clients… may well have been a protectable trade secret in the early years of [the employer’s business] when greater time, energy and resources may have been necessary to acquire the level of detailed information to build and retain the business relationships at issue here. However, for good or bad, the exponential proliferation of information made available through full-blown use of the Internet and the powerful tools it provides to access such information in 2010 is a very different story.Sasqua Group, Inc. v. Courtney, 2010 WL 3613855 (E.D.N.Y. Aug. 2, 2010).

While this may be somewhat troubling for businesses’ with trade secrets, it should be noted that in Sasqua, no written agreement existed between the employee and employer.

Even though social media and the expansion of the Internet have created disputes between employees and employers regarding trade secrets and the ownership of social media accounts, nearly all of them could have been avoided through the use of agreements like, Non-Compete or Confidentiality Agreements.

If you would like to discuss trade secret protection of the impact of social media on your company’s business, we would be happy to schedule a time to meet with one of our attorneys.