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Social Media Ownership Relies Partly on Contract Law

By Allen Smith  2/26/2014
Expectations, preferably set out in agreements or policies or both, can make all the difference when determining who owns a Twitter handle when an employee leaves a company.

“There is no clear Twitter law—no specific statute or case law that clearly defines everyone’s respective rights with regard to social media accounts,” David Rubin, an attorney at Nutter in Boston, told SHRM Online. “So, for the foreseeable future, lawyers and courts will be applying, or at least relying on, traditional legal concepts to analyze these issues, like trade-secrets law, works-for-hire doctrine, duty-of-loyalty doctrine [and] contract law.”

Without any organizational policy, the former employee’s social media account and connections arguably belong to the employee, he noted.

But in PhoneDog v. Kravitz, the court denied a former employee’s motion to dismiss, “leaving open the possibility that the company could prevail on its claim over the fact that Kravitz had taken his Twitter account and followers with him,” Rubin said.

The case centered on Noah Kravitz, a former editor at PhoneDog Media in Mount Pleasant, S.C., who changed his Twitter name from @PhoneDog_Noah to @noahkravitz when he stopped working for the company. Litigation ensued, but the parties settled.

“Future cases are going to turn on their respective facts,” Rubin said, “and the courts will look at what the parties’ reasonable expectations were. “I’m now working with clients on policies and agreements defining ownership and access to social media accounts. It’s really the best, [perhaps] only, way an employer can effectively protect its reasonable interests.”

He recommends that, along with establishing an agreement or policy about ownership and use of social media accounts, the corporate IT department control passwords and administrative rights to them.

Injured Employee and Twitter

But a separate fact pattern was raised in Maremont v. Susan Fredman Design Group, No. 10 C 7811 (N.D. Ill. 2011), giving rise to claims under two federal statutes rather than contract law--the Lanham Act and Stored Communications Act.

Jill Maremont, a director of marketing, public relations and e-commerce, was injured in a car wreck. While she was hospitalized, her employer posted entries on her Facebook page that promoted the company—something Maremont had done when she was well, developing a Twitter following of about 1,250 people. The company also posted 17 tweets on her Twitter account during her absence.

Maremont asked the owner, Susan Fredman, and her colleagues to refrain from posting updates to her Facebook page and Twitter account while she was in the hospital and not working, but the employees ignored her request.

Maremont sued, maintaining she suffered severe emotional distress when she realized that the defendants had sent out Tweets and Facebook posts from her personal accounts promoting the design firm.

Eight months after her accident, Maremont returned to work part time. The next day she wrote on Facebook and Twitter, “Your Editor is Back,” and thanked her temporary replacements “for their amazing posts on Designer Diaries in my absence.” But three weeks later, Maremont’s doctor recommended that she stop work because of her post-concussion-syndrome symptoms, and she resigned.

Maremont brought a false-association claim, under the Lanham Act, against the company and Fredman. A basis of liability under this law is “false representations concerning the origin, association, or endorsement of goods or services through the wrongful use of another’s distinctive mark, name, trade dress or other device.”

The defendants argued that the court should deny Maremont’s false-endorsement claim because she didn’t suffer a financial injury . The court declined to grant the parties’ cross-motions for summary judgment, saying, “It is premature to address whether Maremont suffered actual injury or if defendants were unjustly enriched.” But it observed that, before Maremont was injured, her social media efforts helped promote sales and that she could qualify for a bonus based on sales that exceeded certain threshold levels.

Maremont also sued under the Stored Communications Act, alleging that the defendants violated the law by using her personal Twitter password to access her account and post 17 tweets without her permission.

The defendants argued against her claim, noting that she couldn’t show actual damages under the law. The court, however, said the parties had not yet completed discovery on damages; therefore, “it is premature for the court to address this issue.”

Subsequently, the district court granted summary judgment for the defendants on Maremont's Lanham claim because Maremont could not show damages under the Lanham Act. But it let the Stored Communications Act claim proceed (Maremont v. Susan Fredman Design Group, No. 10C 7811 (N.D. Ill. 2014).

Define Rights

The two lawsuits illustrate why parties’ expectations about social media accounts should be put in writing, said Eric Meyer, an attorney at Dilworth Paxson in Philadelphia.

If the company created a Twitter account and assigned an employee to maintain and service it, the company has a strong argument that it owns the account, he explained. “That argument is even stronger if the company and employee previously entered into an agreement defining their respective rights in the account.”

But he doubted whether a company could say it owned someone’s followers. “They could follow or unfollow at any moment,” he said. And they can—and usually do—follow more than one account.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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