Social Media Law Update (12/29/11) Sherman, Michelle

Michelle Sherman of Sheppard Mullin Richter & Hampton LLP cites a federal case in the Northern District of California where a mobile news and reviews resource company, PhoneDog, is suing a former employee Noah Kravitz over who owns a Twitter account that was started in association with PhoneDog, and is now being used by Kravitz as his own Twitter account. A key issue drawing attention to the case is who owns a social media account—the employee who posts on it, or the employer on whose behalf the employee was posting. The other issue is what value, if any, can be placed on Twitter followers when social media attracts people who are portable and not “owned” by the social media account.

Sherman says that while PhoneDog “does not enter court with the best of facts in order to decide these larger issues of interest to employers and the social media community … the shortcomings in PhoneDog’s case are instructive in terms of steps employers should take to better demonstrate ownership over their social media sites.” She concludes that in general, companies should to the greatest extent possible register social media accounts in their own names or through a senior marketing person and/or social media manager if the account needs to be in the name of a person. The case also highlights the importance of having an agreement with employees concerning their access and use of social media accounts on behalf of the company, according to Sherman, and ensuring that the agreement clearly spells out the relationship and the parameters for it because some courts will literally interpret agreements with employees.