Andy Bitter was a sportswriter for the Roanoke Times covering Virginia Tech football. He recently announced on Twitter that he was leaving the Roanoke Times and would become the VT beat writer for The Athletic, a subscription-based, online sports website. He pinned a tweet on his Twitter feed urging followers to subscribe to The Athletic and continue reading his sports journalism.
The problem? The Roanoke Times claims that it owns his Twitter account and that Bitter's refusal to turn over the account constitutes misappropriation of trade secrets.
On August 6, 2018, BH Media, the owner of the Roanoke Times, filed a lawsuit in the U.S. District Court for the Western District of Virginia against Andy Bitter accusing him of misappropriating its trade secrets. The Complaint includes counts under the Defend Trade Secrets Act, 18 U.S.C. 1836, the Uniform Trade Secrets Act, Va. Code 59.1-336, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, the Stored Communications Act, 18 U.S.C. 2070, and the Virginia Computer Crimes Act, Va. Code 18.2-15.2, as well as common law conversion and breach of fiduciary duty.
The Twitter account at issue is not clearly identified in the Complaint. It is simply described as an "account" that was originally created in August 2010 by Kyle Tucker, formerly a staff writer covering VT athletics for the Virginia Pilot, another newspaper that used to share the same ownership as the Roanoke Times. BH Media, the current owner of the Roanoke Times, claims that it obtained ownership of this "account" and its list of followers. BH Media alleges that it provided Bitter with access to the account when he was hired to replace Tucker in 2011.
Based on the description in the Complaint, the Twitter account at issue appears to be @AndyBitterVT. Presumably the name of the Twitter handle has changed over the years, which is easy to do on Twitter.
Who Owns a Twitter Account?
It is common for a businesses to promote itself through social media and encourage its employees to do the same. So when does a social media account belong to the employer and when does it belong to the employee? The answer to this question is not as clear as you might think.
One of the first and most notable cases addressing this question is PhoneDog v. Noah Kravitz. Kravitz worked for PhoneDog, a technology news website, and created the account @PhoneDog_Noah as part of his job. When he left his job, he changed the Twitter handle to @noahkravitz and took his 17,000 followers with him. PhoneDog sued him for misappropriation of trade secrets, which resulted in an out-of-court settlement before the court could address the merits of the case.
One of the interesting aspects of cases like this is whether a public Twitter feed and list of followers (which is also public) can constitute a trade secret.
In the law review article, Who Owns Your Friends?: PhoneDog v. Kravitz and Business Claims of Trade Secret in Social Media Information, Jasmine McNealy writes:
"Unless a [social network site] user takes steps to protect their profile information, all of their postings and connections are available to public scrutiny. But secrecy is one of the main factors in evaluating the existence of a valid trade secret. A question arises, then, as to whether the use of social media to make connections for business purposes can be the subject of a trade secret."
What Can Businesses Do? Develop a Social Media Policy.
So what can a business do to make sure that it retains the benefits of the social media marketing performed by its employees?
Ownership of social media accounts should be agreed to up front, before becoming an issue in post-employment litigation. These issues can be addressed in an employee handbook or a more comprehensive social media policy.
In this helpful article, Orla O'Hannaidh, a Womble Bond Dickinson attorney, discusses what should be included in a social media policy. If a particular social media account is especially important to your business, then the ownership of that account definitely should be specified in writing.
The importance of a clear social media policy is evident in the case Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013). In that case, the founder of a business that was sold to another company created a LinkedIn account to promote the business. She shared the login and password with other employees who helped manage the account. When she was fired, the company changed the passwords and locked her out of her LinkedIn account. She then sued her former employer under a number of different theories, including unauthorized use of name, invasion of privacy and misappropriation of publicity. The court ruled in her favor on several claims, but suggested that the employer may have prevailed if there had been a clearly written social media account that covered ownership of such accounts.
While most businesses do not want to own their employee's personal LinkedIn accounts, there are other types of social media accounts that are much more beneficial to employers -- as demonstrated by the recent lawsuit filed by the Roanoke Times.
Having graduated from the University of Virginia, I am no fan of Virginia Tech football; nevertheless, I am interested in seeing how this case develops. Perhaps it will establish some clarity in this developing area of the law.