Late last year, a pub in England began posting some rather strange tweets. “We’d like to inform you that we have fired our head chef,” the string of tweets began. It only got worse from there:
- “Unfortunately he wanted to have a weekend off this month and Christmas day this year for family commitments so we thought we’d sack him.”
- “Yeah a week before Christmas!”
- “We don’t care that he has a 7 1/2 month old baby daughter.”
The posts went on, suggesting that the pub was passing off low-quality beef at premium prices. It was almost as if the fired chef himself was venting his anger at his former employer by disparaging it to the pub’s followers, as well as to the millions of Twitter accounts to which his tirade was retweeted. Which, of course, he was.
As a result, the plight of The Plough restaurant became worldwide news, an amusing back-page story about a pub’s unfortunate descent to infamy. For businesses, however, the episode points to a very common, and very serious, concern: whether employers own the Twitter accounts used by their employees as part of their work duties and how they can retain control of those accounts after the employment relationship ends.
Employees and employers are likely to approach the question of who owns Twitter handles and their followers from very different perspectives. Given the increasing blurring of professional and personal lives in modern society, employees — particularly, perhaps, Millennials — are apt to view work-related Twitter accounts and followers as an extension of their individual online personas, similar to a LinkedIn profile or a personal Facebook account on which they may promote their employer. Employers, meanwhile, will view the situation quite differently. They will see all of the aspects of the work-related Twitter account — the account itself, the goodwill it generates, the branding value, the traffic flow to its website, the individuals who follow it, and more — as belonging to the company.
According to CNN, The Plough’s fired chef had created the pub’s Twitter account with his employer’s permission months before he was terminated. His job duties — like those of many other employees across the globe — clearly included establishing the Twitter account and tweeting on behalf of his employer. But even though he was using the Twitter account for work purposes, there was still a question regarding who owned the account.
Also critical is who owns the account’s followers. That was highlighted in PhoneDog v. Kravitz, a lawsuit filed in federal court in California. The employee in PhoneDog was a reviewer of mobile phone products with 17,000 Twitter followers when he left his employer. At that point, he simply changed the name of his Twitter handle (which had previously included a reference to the employer, PhoneDog) and continued to tweet to the followers. Although it didn’t have an agreement with its employee regarding ownership of social media accounts, PhoneDog sued, likening the Twitter followers to a proprietary customer list, and calculated its damages at $340,000. The case settled, but the question of who owns Twitter followers on work-related accounts has continued to worry employers.
So who wins the ownership argument? It depends on a number of factors. Employers have a common sense argument that they own Twitter accounts and followers created or used for business purposes — after all, the employee was getting paid to develop them. However, where the employer doesn’t have policies and agreements in place that clearly specify ownership and control, the final determination will likely turn on factors such as the circumstances under which the account was created and the extent to which the handle was used on the company’s behalf or for business purposes. If the handle includes a company trademark, the company might also find relief available under trademark law. With respect to followers, employers can also draw an analogy to their right to protect relationships with “real life” customers and business contacts. Of course, just as with “old fashioned” business contacts, having an effective agreement in place is critical.
It is cliché to say, but the best defense against defense against Twitter ownership disputes is, in fact, a good offense. The No. 1 thing an employer can do to keep control of its Twitter handles and followers is to have clear social media policies and agreements with employees. What a company includes in these policies and agreements will depend in part on local legal requirements, but employers should consider including the following:
- An acknowledgment that any account or handle that is created by the company or established or used as part of an employee’s work duties belongs to the employer;
- An acknowledgment that any followers on accounts used for business purposes belong to the employer and, where appropriate, limitations on contacting those followers after employment ends;
- A requirement that passwords and other information used to access and continue company accounts be shared with supervisors or others in department;
- Clear procedures for transitioning handles and followers when employment terminates, including requirement that any announcement of departure come from the company rather than the employee; and
- Guidelines for proper use of company accounts, including rules for endorsements, statements regarding business, product and legal issues, and disclosure of confidential information.
While the world of social media and its relationship with the business world continues to evolve, policies and agreements incorporating these provisions should minimize the risks associated with Twitter use, and put employers in a better position to protect their interests when situations do arise.