There’s an interesting case in the US courts that highlights a potential problem for companies who use social media in their marketing.
PhoneDog, a company that provides news and reviews on mobile phones, is suing its former employee Noah Kravitz (also formerly known as @phonedog_noah on Twitter) for damages relating to the 17,000 Twitter followers that Mr Kravitz amassed while working for PhoneDog.
Mr Kravitz left in late 2010, taking his Twitter followers with him, and changed his Twitter account to @noahkravitz. PhoneDog is suing Mr Kravitz for damages of $2.50 per month per follower for 8 months, a total of $340,000. Their argument is that Mr Kravitz’s Twitter followers constitute a company database, and therefore a proprietary corporate asset.
I’m not a lawyer and don’t know the specifics of PhoneDog v. Kravitz, so I won’t comment on where I think the courts will end up. But, generally speaking, I think a company that hires an employee to undertake social media – Twitter in particular – on behalf of the company has an argument to say that the social media followers belong to the company. The employee is paid by the company for their efforts to attract followers, and therefore those followers belong to the company. It’s similar to sales. A salesperson is paid by a company to attract customers. Those customers belong to the company. Salespeople get into legal trouble if they have a non-solicit agreement with their employer and, upon leaving that employer, solicit customers for business on behalf of a new employer.
Unfortunately, it isn’t quite as clear cut as that. Many Twitter users combine professional content (like reviews of mobile phones) with personal information (like whether they’re going to skip their morning
workout). In PhoneDog v Kravitz, the courts will have to decide what the economic value of Mr Kravitz’s Twitter activity is.
I think for B2B companies who are embarking on social media, it’s best to think long-term about their social media presence and the people who will undertake it. Here are a couple of things to consider:
a) Think about the handle that the company’s employees or agents will use for social media marketing. Is using an individual’s name the best bet? Should it be a combination of the company name and the individual’s name? Just the individual’s name?
b) Clarify the ownership of social media followers in employment or contractor agreements. Will they belong to the company at the end of the working relationship or to the individual?
I’m keenly awaiting the court’s decision on PhoneDog v Kravitz, and I’m sure there will be other cases in the future - make sure your company isn’t involved in one of them.