Does an employer have any sort of ownership interest in its employees’ tweets or Twitter following? This very current social-media question may be tested in a lawsuit originally filed last July in federal court in California by PhoneDog, a South Carolina-based company that reviews mobile phones and services online, against former employee Noah Kravitz. An amended complaint in the case, filed on November 29, 2011, has attracted considerable media attention.
When Kravitz worked for PhoneDog as a product reviewer and video blogger from 2006 to 2010, he tweeted under the handle @PhoneDog_Noah and attracted some 17,000 followers for his comments and opinions on Twitter. When he left the company, he continued tweeting under the name @NoahKravitz. But he didn’t create a new account with that name; instead, he kept the account (with all its followers) and just changed the Twitter handle to @NoahKravitz. Eight months later, PhoneDog sued Kravitz, alleging that his continued use of the account and his tweeting to his followers constitute a misappropriation of PhoneDog’s trade secrets, intentional interference with prospective economic relationships, and conversion. Phone Dog said that it had suffered loss of advertising revenue as a result and that Kravitz “was unjustly enriched by obtaining the business of PhoneDog’s Followers.”
PhoneDog essentially claims ownership rights due to the fact that it directs its employees to maintain Twitter accounts and instructs them to tweet links to PhoneDog’s website, thus increasing PhoneDog’s page views and generating advertising revenue for PhoneDog. PhoneDog said in the complaint that since Kravitz now works for TechnoBuffalo, a competitor of PhoneDog, he is exploiting PhoneDog’s confidential information on behalf of a competitor. PhoneDog is seeking $340,000 in damages — $2.50 per month per Twitter follower for eight months. Although PhoneDog said in the complaint that “industry standards” peg the value of a Twitter follower at $2.50 per month, the company did not give a source for that estimate. Nor did PhoneDog attempt to distinguish between people who followed Kravitz because of his connection to PhoneDog and those followers who are merely friends of his or enjoy his commentary.
In my view, this would be a solid case if Kravitz was bound by a non-competition or non-solicitation agreement. The allegations are essentially that Kravitz took a list of 17,000 PhoneDog followers and is now soliciting business from them on behalf of a new company. Such conduct would normally violate a standard non-solicitation agreement. In the absence of a noncompete, the case is weaker but raises some interesting issues. It’s not quite the same as the typical case involving theft of customer lists because, unlike in most of those cases, Twitter followers’ identities are not private. Kravitz didn’t need to assume control over the Twitter account in order to solicit business from those followers; doing so just made things easier for him. At a minimum, I think the intentional interference claim will stick. Kravitz should have started a new Twitter account and invited people to follow him there, not simply changed the name on the account. That’s risky business.