Who do social media followers belong to – you, or your business?

Who do social media followers belong to – you, or your business?

As the papal helicopter whisked Pope Benedict XVI away from the domes of St Peter’s Basilica one last time, he officially vacated the most powerful religious position on earth. And as the first-ever pope to tweet, he also left behind more than two million Twitter users who have followed his musings in nine languages since the pope’s account was created in December 2012.

Activity on his Twitter account, @Pontifex, ceased on the day of his departure, February 28. When a new pope is chosen, he will take over the @Pontifex handle, and the account will become active again. “From choice, the Pontifex profile was not personalised, but it clearly refers to the person of the pope,” said the Vatican Radio, according to a story on CNN.com.

The Vatican is hardly known for being cutting edge. But when it comes to its Twitter policy, the organisation was prescient enough to set up an account that expressly belonged to the papacy and not to an individual pope. There was no doubt that Pope Benedict’s followers did not belong to him, but to the office. “They were smart in thinking at the outset whether the handle would be associated with the current pope or with the papacy,” says Kendall Whitehouse, technology and media editor at [email protected] “And they made the more flexible choice.”

But not all businesses have showed the same foresight.

In December 2012, tech review site PhoneDog settled a lawsuit against a former editor and blogger, Noah Kravitz, for allegedly misappropriating the company’s Twitter followers for his own gain. Kravitz had amassed 17,000 followers during his four years at PhoneDog. When he left the company in 2010, he changed the name of the Twitter account to @noahkravitz from @PhoneDog_Noah and kept the followers, according to court filings.

PhoneDog said these were the company’s followers, not Kravitz’s. It sought damages of $340,000 for alleged misappropriation over eight months – at $2.50 a follower per month. The case garnered widespread media attention, in part because it put a hard dollar value on a Twitter follower within a legal context.

It also brought to light tricky corporate policy issues around social media: who owns a Twitter or Facebook account when personal and business uses are blurred? When an employee quits, can he take his account – and his followers – with him? Under what circumstances can a company claim that followers and Facebook friends are its customers?

“Twitter is still relatively new,” Whitehouse says. Five years from now, when it will be more common for people to bring an existing Twitter presence with them to a new job, “it will be harder for the company to claim that the followers accreted [to an existing account] during employment are company property,” he adds. For now, the law is not clear because there is scarce, if any, legal precedent.

Is it stealing?

For the time being, however, “it’s a situation where we would be relying on pre-social-media law analogies” for guidance, according to Janice Bellace, professor of legal studies and business ethics at Wharton.

If an employee absconded with a filing cabinet full of customer lists, it is clearly stealing, she says. But what if the employee wrote down customer names in a notebook over five years and took it with him when he resigned? He probably could keep the notebook, unless the company had a specific policy against it, Bellace notes. Higher-level employees generally could be barred from contacting customers for several years once they leave a company – but that is an issue primarily related to not competing with a former employer, she adds. It does not pertain specifically to social media.

By their very nature, most social media accounts are designed to be used by individuals – not for corporate entities. “The conditions of use for both Twitter and Facebook are for individual accounts,” Bellace says. “They are designed to be used by individuals.” So, even if Joe Smith used both his and the company’s name in his Twitter handle, Bellace argues it would still be considered an individual account and therefore beyond the grasp of the employer, assuming no corporate policy forbidding such a set-up exists.

A company can prohibit an individual from using the firm’s name in a handle to avoid the impression that the posts are official communication. But absent such a policy, the company cannot force an employee to cease and desist from using an account that includes the corporate name, Bellace notes, adding, however, that if the business set up the account in the first place and required employees to post as part of their job, a case could be made that the account is under the company’s jurisdiction. Still, it is best for the business to spell out the conditions in a written policy, she suggests.

Misappropriation of trade secrets

PhoneDog’s legal strategy to gain the upper hand in a murky area of law was to claim that ex-employee Kravitz’s followers were the company’s users and that his alleged unauthorised use of its Twitter account constituted fraud.

The lawsuit, filed in July 2011 in the US District Court in the Northern District of California, said PhoneDog gave Kravitz the Twitter account and password, as well as the handle @PhoneDog_Noah so he could promote the company’s services using social media. As such, PhoneDog argued, the account should be considered confidential company information and be classified as a trade secret.

After Kravitz resigned, PhoneDog said it asked the employee to turn over the Twitter account. Instead, the company alleged, Kravitz just changed the Twitter handle and kept the followers. Later, he would join a rival firm and use the same Twitter account to promote his new employer. In the lawsuit, PhoneDog said Kravitz made “improper” use of the Twitter account to “compete unfairly” against the company for its customers.

As a result of this alleged “trade secret misappropriation, PhoneDog has suffered damages to its business, reputation and goodwill,” the court filing said. Moreover, Kravitz was “unjustly enriched by obtaining the business of PhoneDog’s followers.”

Kravitz told a different story to The New York Times in an article published on December 25, 2011. He said he was allowed to keep the Twitter account if he would post items occasionally for PhoneDog. According to Kravitz, the company sued after he tried to claim 15% of the site’s gross advertising revenue as well as back-pay. PhoneDog responded in a subsequent blog post that Kravitz sued the company based on “meritless” employment claims. What actually happened is uncertain because the lawsuit was settled and terms were not disclosed.

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