If you have encouraged your employees to set up a Twitter account to tweet information about the company’s business, who owns the followers if they leave? This is the question in Phonedog v Noah Kavitz, a California case that will no doubt have an impact in Canada.
In that case, Phonedog encouraged its employees to use social media for marketing its cell phone products. One employee, Noah Kavitz, set up a Twitter account with the user name @Phonedog_Noah. He proceeded to amass over 17,000 followers.
After four years, the employee resigned, apparently on good terms, changed the username to his own name, and continued to send tweets to the followers. As of today, he has an impressive following of 24,398, an increase no doubt due to the publicity of this case.
[CASE UPDATE AS OF DECEMBER 2012: The parties settled out of court and the terms remain confidential. Unfortunately, we’ll have to wait for another case to make its way through the courts for a final decision. The issues raised in the case, however, remain unsolved and of great interest to many workplaces.]
Employer Sues Noah
The employer then sued its former employee for continuing to use the Twitter account. The employer allocated a value of $2.50 to each Twitter follower and claimed damages of $340,000 for (1) misappropriation of trade secrets; (2) intentional interference with prospective economic advantage; (3) negligent interference with prospective economic advantage; and (4) conversion.
In November 2011, the employee lost his attempt to have the matter summarily dismissed, so there is still no final decision on the issue. We’ll have to wait for the case to make its way through the court systems.
For Noah’s side of the story, see Samantha Collier’s blog “Social Media for Law Firms” for an interesting interview with him, as well as a link to his CNN interview.
Commodification of Followers
This commodification of followers has led to a couple of interesting developments:
- First, it generated a lot of funny tweets out there about striking it rich overnight because of Twitter follower numbers (as of today, I personally have another $1,430 to add to my kids’ RESP! Oxford here they come!);
- It introduced a so-called “industry standard” of how much a Twitter follower is worth, although it remains unclear how the “industry standard” was arrived at, upon what research it is based and whether, in fact, their marketing folks just made it up; and
- It has generated a lot of philosophical blog posts about whether we are all widgets to be traded electronically, or whether we are human beings with human relationships that should not come with a price tag.
Personal or Business?
One of the reasons attaching a price tag to people is distasteful in this context is that we all want to believe that social media is always about personal relationships, not deliberate, targeted marketing.
Social media is all about the individual voice. The marketing gurus have known this for a while, and deliberately get into the social media space to sell/place/plug a product by an individual. The Millennials are far too sophisticated to put up with blatant advertising at them. They want someone to share with them his or her individual opinion about a product or service, enabling the consumer to make decisions based on whatever level of trust or influence exists between the parties.
And so, Phonedog_Noah chirped to his followers about himself (to build trust) and about the product (to sell, as part of his job).
It is precisely the blending of personal and business that sells to Millennials and beyond, but it’s a pain in the neck for employment lawyers. Had Phonedog required its employees to set up an account for business purposes only, it would have a stronger argument that the followers were no different than a Rolodex or customer list, which an employee is not entitled to take with them when they leave a job.
On the other hand, social media is not as engaging, interesting or successful if it is a generic mantra from a company with no personal voice. The mix of personal and business may sell, but it creates a lot of ambiguity about who owns the results of the employee’s efforts.
Take-Away for Employers
Yes, I know I say this in virtually every blog post, but a good policy is key. If you have a workplace social media policy that clearly articulates where that line is between personal and business, then as an employer, you will be in a much better position to lay claim to the followers, friends, or connections that are generated for work purposes only.
The policy should require employees to separate the business and personal wherever possible. If you’re requiring your employee to participate on Twitter or Facebook, then have them set up both a personal and a professional account to keep the lines clear.
Among other things, the policy should also cover the standard provisions about whether the employee can engage in personal social media during work hours and what the employee is permitted to express about the company on any personal accounts.
It is also worthwhile for employers to think about the content of the employment agreement itself. If you know up front that social media will be a required part of a candidate’s job, laying it out expectations in a contract can save you some headaches down the road.
I have no doubt that a case like Phonedog will come to Canada at some point. Until then, we have no clear line about who owns the work product of social media. All you can do is remove as much ambiguity as possible through policies and communications.
And while you’re at it, have your marketing people talk to your HR people once in a while.
My thanks to my colleagues Maartin Vestering (in our Amsterdam office) and Justine Phillips (in our San Diego office) for bringing this case to my attention.