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Posted on October 24, 2018.
If an employee with a large Twitter following leaves, and if the employee primarily used the Twitter account for business promotion, can the former employer use trade-secret law to claw back the account?
This is the central issue in a dispute between former Roanoke Times sports writer Andy Bitter and the company that owns The Roanoke Times, BH Media Group.
While at The Roanoke Times, Bitter tweeted about Virginia Tech athletics using the Twitter handle @AndyBitterVT and the screen name “Andy Bitter.”
In June, Bitter left the paper to work for The Athletic, a sports news site. At that time, his Twitter account had over 27,000 followers. The Roanoke Times demanded that Bitter turn over the account, but Bitter refused. He now uses it at The Athletic.
BH Media Group sued Bitter to recover the account. It made two primary arguments: that it owns the Twitter account, and that the Twitter account contains trade secrets belonging to The Roanoke Times.
The ownership issue is murky. BH Media Group points to an employee handbook, which Bitter agreed to follow, that states social-media accounts “provided by BH Media” are property of the company. Bitter claims he was personally given the Twitter account by a departing sportswriter, so it wasn’t provided by the paper. (Bitter changed the handle and screen name after taking over the account.)
In late September, the federal court in Roanoke denied a motion by BH Media Group for a preliminary injunction, which would have given it control over the account pending trial. It held BH Media Group didn’t provided clear and convincing proof either that it owned the account or that anything about it constituted a trade secret.
The case is still pending. BH Media Group could still prevail. Yet, usually the result of a preliminary injunction hearing foreshadows the way the case will end, and the parties settle accordingly.
What lessons can employers learn here?
Lesson #1 – Have a written agreement at the beginning of employment about social-media account usage and ownership.
The Roanoke Times gets credit for addressing social-media account ownership in an employee manual and for having employees sign a pledge to follow it.
But the paper didn’t have a detailed agreement that specified that any social-media account used by an employee for business purposes is the property of the paper. The paper apparently didn’t plan for employees starting or inheriting social-media accounts and using them for business purposes. People in sales and media do that frequently.
Lesson #2 – Employers are unlikely to successfully use trade-secret law to claw back social-media accounts.
A trade secret is information that has value because it’s been kept confidential from competitors. For example, a secret manufacturing process can qualify.
BH Media Group argued a Twitter account contains trade secrets. It pointed to the ability to send direct messages to followers and receive direct messages from accounts that follow you back, and to seeing likes, tweets and retweets of followers.
You can share confidential information with someone else and keep it a trade secret by having that someone else agree to keep it confidential, such as disclosing your manufacturing process to a parts manufacturer in confidence.
Yet, there’s nothing confidential about Twitter. Direct messages don’t come with a written confidentiality agreement. Each Twitter account shows publicly who follows the account and who the account holder is following.
Overall, popular social-media accounts used in business (Facebook, Twitter, LinkedIn, Instagram) are not designed for communicating confidential business information. They are intended for sharing and chatting – they are “social” media.
Because trade-secret law is a weak tool, unless ownership of social-media accounts is addressed in a written agreement, the employee will have the legal advantage, but there often will be enough merit to the employer’s position for it to put the departing employee through costly litigation. Usually the litigation would cost more in attorneys’ fees than the account is worth.
Sometimes the plucky little guy wins over the big-time opponent when the big-time opponent doesn’t fully prepare for the fight. Thus ODU shocked the world by beating Virginia Tech in football this fall. And, thus, Andy Bitter got to tweet about it for The Athletic from the Twitter account he previously used at The Roanoke Times.
Written on October 16, 2018
by John B. Farmer
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