April 30, 2014

This is the latest in a series of articles by The Poynter Institute and the Reporters Committee for Freedom of the Press on legal issues affecting journalists. Poynter’s Ellyn Angelotti is an attorney and teaches social media issues.

Social media regularly blurs lines when it comes to journalists’ personal and professional lives. We often post pictures of our pets and children alongside posts related to our work. One unintended consequence is this can create ambiguity about who ultimately owns your Twitter account.

Organizations and brands seek employees who can effectively build an audience using social media. However, once an employee builds a healthy community of followers and then leaves the organization, who do the followers belong to?

Some instances are clearer than others.

Journalists who create an account associated with a beat and then exit the organization often leave their account and start a new one.

However, when Jim Roberts, who was the assistant managing editor of The New York Times at the time, accepted a buyout last year, he took his 75,000 followers with him. He tweeted from his (then) handle @nytjim, “My feed is my own.”

After leaving, he revised his handle, @nycjim, which endured his stint as executive editor at Reuters. Now as the executive editor and chief content officer at Mashable, his base has grown to 134,000 followers.

Legal issues of ownership are still in their infancy.

PhoneDog v. Noah Kravitz is the most notable case involving Twitter followers. Kravitz, an employee for the technology news and review site PhoneDog created the account @PhoneDog_Noah to post updates about his work. He built an audience of 17,000 Twitter followers. When he left the company, he changed his Twitter handle to @noahkravitz and took his followers with him. PhoneDog sued him for misappropriation of trade secrets, among other related issues.

The case settled out of court in 2012 for undisclosed terms and Kravitz kept the account. While PhoneDog provided little direction on ownership of Twitter followers, the discussion on this issue helps to identify several factors that the courts would likely examine to determine ownership of a social media account, including:

  • Who initiated the creation of the account?
  • Who directs and creates the content?
  • Did the employee have the account before taking the job, or create it because of the job?
  • Who has access to the passwords?
  • Is the account associated with the brand or the employee?

So journalists or employers can better protect their interests by showing their involvement in the account has been significant. But experts have suggestions for resolving Twitter account disputes before they end up in court.

Jasmine McNealy, an attorney and assistant professor at the University of Kentucky, recently published a law review article, “Who owns your friends?: PhoneDog v. Kravitz and business claims of trade secret in social media information.” McNealy explores the ownership of Twitter followers and offers useful suggestions for how businesses can avoid conflicts in this area by creating non-disclosure agreements, assigning the rights to social media content created, and encouraging employees to maintain separate personal and professional accounts.

Twitter followers are now valued as work capital, McNealy said. Some job candidates are hired based on their existing social media following. So it is important for both employers and employees to discuss the areas of potential dispute and work them out before disputes arise. Here are some suggestions:

  • Seek Clarity — When you take a job or when you create a potentially work-based social media account, have a conversation with your boss about your work on social media. Is that work part of your role with the company and therefore property of the company? Or, does your boss see your work on social media as outside of the scope of your employment. Come to an agreement regarding who owns the followers. This conversation will help you and your boss arrive at rational decisions at the outset rather than later when emotions may be running high.
  • Put it in writing — If you lead an organization or manage employees who use social media, create a social media policy that addresses specific questions about social media use. Update this document regularly to accommodate the changing technologies and remind everyone of the agreed upon expectations.

Even if you are not a manager, if you happen to be somewhat social media savvy, ask your boss if you can help draft an agreement that more clearly indicates who has ownership of you and your colleagues’ social media following. This could be an opportunity for you to help your organization understand the technology and the issues involved.

  • Strategically separate accounts — Maintaining separate personal and professional accounts may seem counterintuitive to the nature of social media. McNealy suggests a fundamental question to ask yourself if you have an account you use both professionally and personally — “why are people following you?” Is it because they want to engage with you personally, or because you represent an extension of the brand or company you work for?

This could be an opportunity to segment your social media audiences more effectively. If people follow you because you represent your company, consider creating an account that is more focused on that aspect of your work. You can still find a way to interject your own voice into your work-related tweets, and potentially feel less awkward about posting selfies with your friends.

  • Be Smart — McNealy said she tells her students not to censor themselves, but to keep in mind there are sometimes consequences for what they say on social media. “The First Amendment doesn’t necessarily protect you from getting fired for not representing your company in a way that they’d like you to,” she said. Remember Justine Sacco who was fired as a result of an offensive tweet she sent just before departing on a flight to Africa?

Unfortunately, we don’t really know how the courts are going to apply laws related to trade secrets, privacy and intellectual property to the issues we may encounter regarding our social media followings.

However, we can create some clarity and ground rules to help us avoid legal land mines in this area.

Related: Hyperlinking could help journalists in defamation lawsuits | How to use FOIA laws to find stories, deepen sourcing

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Since joining The Poynter Institute in 2007, Ellyn Angelotti has helped Poynter explore the journalistic values and the legal challenges related to new technologies, especially…
Ellyn Angelotti

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