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Company Twitter account ownership should be written into employee contracts, advises IP and media lawyer


By Stephen Lepitak, -

November 11, 2011 | 3 min read

A Media and IP lawyer has advised firms to insert Twitter account clauses into employee contracts as a trial in the USA is set to determine the ownership of a Twitter account, with phone review website PhoneDog suing former employee Noah Kravitz.

The case in the states in similar to one faced by BBC when Laura Kussenberg defected, leaving the corporation nearly 60,000 Twitter followers lighter.

PhoneDog requested that Kravitz, who had around 17,000 followers, return the Twitter account, where he used the handle @PhoneDog_Noah. Instead Kravitz changed the account to @noah-kravitz, leading the company to cite claims for misappropriation of trade secrets, interference with economic advantage; and conversion.

Such a challenge is one that could become more common, and apparently there is currently no legal precedent set within the UK should such a legal challenge be taken up.

Steve Kuncewicz, lawyer for Gateley LLP, recommends that companies pre-empt this by placing the ownership of Twitter accounts within employee contracts.

"The ownership of a Twitter following is going to be an issue for any business with high-profile employees that are commenting on their behalf via social media, but as of right now the UK courts haven't made any ruling which would allow a company to claim a following when that employee leaves if they're using their own name as a username. We have seen cases where. for example, E-Mail contact details and even LinkedIn connections have been found, at least in theory, to be the property of an employer rather than the employee but nothing yet that covers Twitter,” explained Kuncewicz.

“In the meantime, the best thing for a business would be to include a clause in their employment contracts requiring that anyone who tweets on their behalf should do so using a username that incorporates a brand (as ITV and PhoneDog did) - this way they can look to take action under Twitter's terms of use to force that user to close down the account for the unauthorised use of or suggestion of a continuing connection with that brand when they leave. Trying to work in any kind of clause which confers ownership of the existing following of a high-profile employee joining the business will be difficult if not impossible, so starting as you mean to go on is the best way of keeping hold of followers in this kind of situation, along with including a clause which prohibits the employee from making an announcement on their work-profile that they're leaving in an effort to move followers to their new account.”

However, Kuncewicz warned that followers follow the person behind the username more than the brand they represent, and that businesses could be seen to be behaving ‘unfairly’ under such circumstances.

“As with anything else involving social media, common sense and forward planning is always going to be your best defence. As far of the value of a follower, that's debatable in any number of different ways but I think that it's unlikely that we'd see the UK Courts following the American approach in the PhoneDog case, especially when they can choose to unfollow an account for any reason and at any time - proving that as a ‘loss’ which an employer could recover over here is a much more difficult exercise,” added Kuncewicz.

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