Social Media Part II: Do Your Tweets Belong To You?

A few weeks ago, we posted a blog on potential trade secret issues with LinkedIn contacts. Just one week later, a case was decided in the Northern District of California that dealt with a similar issue – trade secrets in the context of Twitter. With these types of issues popping up year after year, and professional websites changing the face of networking, it would be naïve to think that social media profiles and accounts are ever really “personal” anymore.

On November 8, the court denied the Defendant’s 12(b)(6) motion to dismiss in PhoneDog v. Kravitz and held that the plaintiff sufficiently alleged a claim for misappropriation of trade secrets – for the use of a company Twitter account.

Kravitz worked for PhoneDog as a blogger until sometime in 2010. PhoneDog is an “interactive mobile news and reviews web resource” that reviews mobile products and provides customers with information on different mobile phones and carriers. While employed for PhoneDog, Kravitz had a Twitter account with nearly 17,000 followers under the name “@PhoneDog_Noah”. After Kravitz’s employment was terminated, the company requested that he return his account. Instead, Kravitz continued his use of the account and merely changed the name to “@noahkravitz” and the company subsequently filed suit. Among the claims alleged, PhoneDog asserted that Kravitz misappropriated company trade secrets by continuing to use the Twitter account and failing to hand it over. Specifically, PhoneDog argued that the list of Kravitz’s Twitter followers is similar to a business customer list. Estimating that each follower was worth $2.50/month of use, PhoneDog alleged $340,000 in damages.

In response to the allegations, Kravitz argued that followers are people who, in their sole discretion, can choose or not to choose to “follow” his Twitter account. As such, the list of followers could not be viewed as property of PhoneDog, or something PhoneDog has possession over. In support of this argument, Kravitz referred to Twitter’s terms of services, which state, “Twitter accounts are exclusive property of Twitter and its licensors.” Further, Kravitz argued that his list of followers couldn’t be categorized as a trade secret, because the list is publicly available and in no way confidential. Kravitz also argued that the password to the Twitter account (which is presumably generally unknown) has no independent economic value and therefore could not provide PhoneDog with any economic business advantage. In fact, Kravitz created his password himself and the company apparently put forth no effort to keep the password confidential.

As outlined in the earlier Partridge IP Law blog, dealing with trade secrets and social media, the Uniform Trade Secrets Act requires that a company derive economic benefit from a trade secret and take reasonable steps to maintain the secrecy of such information. Thus, a quick review of the above facts might lead to the conclusion that no trade secret existed and thus no case for misappropriation can be made. Despite this possible conclusion, PhoneDog won its argument in opposition to Kravitz’s motion to dismiss. The court held that PhoneDog adequately “described the subject matter of the trade secret with sufficient particularity” and held that PhoneDog’s allegations really have to do with evidence beyond the scope of the pleadings, and, as such, are not appropriately raised under a motion to dismiss for failure to state a claim.

It will be interesting to watch this case move forward, to see if PhoneDog can adequately satisfy the elements of a trade secrets misappropriation claim. Can a public account, with a “followers” list compiled of public Twitter members actually be considered confidential? What is the economic value of a Twitter account with recent tweets such as “Why does the bathroom smell like licorice?” and “Dude, I was sedated last week,” for a business like PhoneDog? In the meantime, this case illustrates (once again) the importance of taking care to separate personal social media from your business, or be prepared to possibly dispute ownership if you ever move on!