Social media warfare

Dec. 18, 2012
In this edition of In the Trenches, Acme discovers that Twitter is anything but frivolous.

Tawana Tweet was Acme’s marketing director and social media guru. An early adopter of Twitter and other social media, Tawana quickly realized the value of these tools as a promotional vehicle, both for herself and for Acme. She launched a blog, “Widget Girl,” with her name, Acme affiliation, and photograph prominently displayed as editor. She posted tips about Acme products, comparisons and critiques of the competition, and stories about the widget industry in general. Tawana also created and administered a Twitter account, @acme_widget_girl, where she tweeted her blog entries, along with noteworthy industry news and product information.  It wasn’t long before Tawana had amassed thousands of hits on the Acme blog and more than 17,000 followers on Twitter, mainly widget industry professionals. While Tawana alone maintained the blog and Twitter accounts, her personal assistant, Ivana Moveup, held the passwords and occasionally posted for Tawana.

One day, Tawana was hurriedly returning to the office after lunch, racing to make it to a meeting while tweeting about the delicious tuna sandwich she’d just eaten, when she was struck by a car and seriously injured, suffering serious brain trauma. Ivana began to post on the Acme blog and tweet on @acme_widget_girl, earnestly trying to maintain the relevance of the Acme accounts and the interest of their followers during what looked to be a very lengthy hospitalization and recovery for Tawana.

The first of Ivana’s tweets was a link to the Acme blog, where Acme president Charles Encharge had posted an update about Ivana’s accident. Charles informed readers about Tawana’s accident and announced that, in her absence, a guest blogger would assume her duties. Acme did not remove Tawana’s name or photo, though. Ivana continued to tweet under @acme_widget_girl, but made no mention that she was a stand-in.

After Tawana regained consciousness and began to recover at home, she discovered that Ivana was tweeting and blogging on her accounts. She contacted Ivana and Charles, asking them to refrain from posting updates to the blog and Twitter account while she was out. When they disregarded her requests, Tawana changed the passwords, leaving Acme without access to the blog, the Twitter account, and the thousands of followers. Charles contacted Tawana at home and demanded that she turn over the passwords. When she refused, Charles terminated her on the spot, and Tawana promptly removed the Acme affiliation and Acme promotional content from her blog.

Acme then filed suit against Tawana for misappropriation and conversion, among other claims. It sought a court order that she relinquish the use of the account and turn over the passwords. Tawana filed a countersuit, contending that she suffered severe emotional distress from Acme’s posting of tweets and blog entries on her accounts to promote its business. She filed various other claims, as well.

A labor and employment analyst’s response:

Who owns a social media account — the employer or the employee who administers it and creates its value? It’s an issue that most employers would not have anticipated just a few years ago. But as we’ve begun to recognize the importance of social media, proprietary disputes over social media accounts have found their way into the courts.

As Acme saw it, “@acme_widget_girl” literally had its name written all over it; the blog and Twitter account, as well as the passwords to those accounts, were proprietary, confidential information.  What’s more, Tawana built the social media accounts on company time, and she was paid to do so as part of her job duties. On the other hand, to Tawana, her professional stature was tied up in the accounts that she authored and the follower bases that she grew. No doubt Tawana envisioned that, when she left the company, she’d simply take the “Acme” off the name and bring her blog and Twitter followers with her.

Given these competing interests, a company’s social media presence is a valuable asset that requires protection. The terms of ownership should be expressly defined by contract at the outset. In the future, Acme must clearly state that employees who administer professional or business-related social media sites do so for the benefit of the company as part of their job and, as such, any social media account, along with its subscribers or followers, is the property of Acme.  Moreover, the employee must agree in writing to relinquish all control over the accounts and passwords upon his or her departure from the company for any reason.

In the meantime, does Acme have a viable lawsuit against Tawana? Maybe. It’s tough to identify the likely damage suffered by the company when Tawana absconded with the social media accounts. Perhaps Acme can prove that it had an intangible property interest in the list of Twitter followers, a trade secret akin to a customer list. How might such damages be measured? In one misappropriation case with similar facts, an employer estimated the damages at $340,000. It argued that, according to industry standards, each Twitter follower is valued at $2.50. The employer multiplied that amount by 17,000, rounding out the damages to $42,500 for each month the former employee continued to use the account. Acme might also be able to prove that Tawana interfered with a prospective economic advantage if it could show that the company had derived a significant amount of income from the blog and Twitter account.

And what of Tawana’s counterclaims against Acme? She may be able to pursue a “false association” or “false endorsement” claim under the Lanham Act if she can establish that Acme intended to “commercialize an interest” in her identity when it tweeted and blogged on the accounts in her absence. Tawana would have to prove that she suffered an injury because her followers actually relied on the mistaken identity, though, or that Acme was unjustly enriched by the use of her identity. Tawana might also prevail on a federal Stored Communications Act case if she can prove that Acme exceeded its authority in obtaining access to her social media accounts. There may be other state law claims that Tawana might be able to pursue against Acme, as well. Given the facts of this particular case, however, it’s not clear that such claims would be viable.

Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, [email protected]

Reader responses:

Since the blog work appears to have been done on company time and tended to place Acme's widgets in a positive (PR) position, my personal belief as a non-lawyer is that Acme would have a decent chance at keeping the twitter handle and blog. After all, Tawana's name is not part of the handle or blog name although her picture is posted on the blog page. Acme treated it as a company handle, and even announced a substitute blogger during Tawana's absence. The only problem (as Acme is wont to do), they did not formalize the handle/blog situation as a company thing.

If Tawana had a prior intention of private ownership of the handle, concept and blog, it should have been done on private time, and to satisfy the lawyers, put a disclaimer on the page with her picture that it was a private blog, not a company blog. Since she did not do so, and if Acme persists in the termination, a compromise would likely be in the best interests of both parties.

At this point, I would recommend Tawana do the following:

  1. Tweet that she is changing her handle to the name "Widget_Girl" (removing Acme's name),
  2. Either relinquish the blogsite "Widget Girl" to Acme and start a new one (Perhaps called "The Real Widget Girl"), or settling with Acme that she can keep the "Widget Girl" site name and rename the existing site "Acme Widget Girl".
  3. Before releasing the passwords and doing either or both ideas above, posting (without rancor or venom, and most likely with agreed-upon verbiage with Acme) that she and Acme have parted ways, and announcing the changes chosen above.
  4. Acme drops their Conversion lawsuit against Tawana.

That way, the value of the blog and handle as a company informational vehicle has been retained, and Tawana can keep her personal "Widget Girl" reputation intact. What no one can control, though, is whether the followers will choose to go with the information (Acme), the personality (Tawana), or even both.

Phil Grimes

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