Former employers can gain custody of social media

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By Sarah Rodriguez
Dolan Newswires

Here’s a word of caution for lawyers who use Twitter professionally: If you part ways with your firm, your ex-employer may get custody of your Tweets.

In the past few years, legal disputes over social media have become increasingly common. Defamation claims and discovery matters are standard issues. But employment-related social media issues are now starting crop up across the country.

Two recent cases highlight what could happen when former employees refuse to part with the social media presence they’ve cultivated during their time at the job.

One case involves a former employee of PhoneDog, a company that offers online news and reviews for mobile phones. Noah Kravitz, a one-time reviewer and video blogger for the website, tweeted under the handle @PhoneDog_Noah. At the time of his departure, he had 17,000 followers.

PhoneDog asked for him to hand over his password, but he refused. Instead of relinquishing the account, he changed his handle to @noahkravitz and continued to tweet.

PhoneDog sued in California federal court for misappropriation of trade secrets, interference with economic advantage and conversion.

The company asked for damages of $340,000. It claimed that each of the 17,000 followers was worth an industry-standard value of $2.50. This translated into a monthly damage amount of $42,500, which PhoneDog multiplied by eight for each month Kravitz had used the account post-employment.

Kravitz claimed that the calculation was unfounded and the company failed to satisfy the $75,000 damage threshold required to bring a diversity action in federal court. He also argued that his account did not contain trade secrets because the list is publicly available.

U.S. Magistrate Judge Maria-Elena James refused to dismiss the case, saying that more evidence was needed to determine whether a Twitter password is a trade secret. She has also allowed the trial to continue on the conversion claim.

In another recent case, a New York federal judge ordered a woman to turn over all passwords and login information for her former company’s websites, email accounts, social media accounts and third-party servers.

Ashleigh Nankivell, a former video and social media producer for beauty product marketing company Ardis Heath LLC, refused to surrender account passwords upon her termination. The company won a preliminary injunction ordering her to hand over the information.

The court found that that the inability to access and use these accounts had “a negative effect on plaintiffs’ reputation and ability to remain competitive.” The court further ruled that the company’s rights to the login information was uncontested and Nankivell’s “unauthorized retention of the information may therefore form the basis of a claim of conversion.”

A takeaway for lawyers: Set explicit guidelines – or urge your business clients to set guidelines – for work-related social media use, including what becomes of an employee’s account upon termination.