When ex-employees take your Twitter followers away from you

What happens when an employee who controls your company's Twitter account leaves for a competitor, taking the Twitter account with him? This question seems to come up now and then in US employment law cases and the latest is the case of gadget blog PhoneDog and its erstwhile employee, Noah Kravitz. According to Ars Technica's post "Who gets custody of Twitter when an employee quits?":

In this case, Noah Kravitz worked for PhoneDog, which is an "interactive mobile news and reviews web resource." Kravitz worked as a reviewer and video blogger. He used the "@PhoneDog_Noah" Twitter account, and it amassed approximately 17,000 followers. When he left, PhoneDog asked for the account "back" but he demurred, instead changing the account handle from @PhoneDog_Noah to "@noahkravitz". PhoneDog sued, asserting claims for misappropriation of trade secrets, interference with economic advantage; and conversion.

An employee leaving his employment and heading for the competition (or even setting up a competing business of his own) could give rise to a number unlawful competition claims. The primary catalyst for these claims would be the relationships that are formed or strengthened with customers or potential customers using social media. With respect to employees and contractual non-solicitation clauses, we saw some of this a couple years ago on LinkedIn. The PhoneDog case is the latest of a string of similar cases that includes the Rick Sanchez (formerly of CNN) case. The claim categories in the PhoneDog case are likely to be fairly different to the sorts of allegations we would see in a comparable case here in South Africa.

Before getting into possible causes of action, its important to take note that the risk of an employee leaving a company with the company's Twitter account is not necessarily a minor matter. Sure a company can create a new Twitter profile and require the ex-employee to relinquish the account's name due, in part, to trade mark considerations but what happens if the ex-employee does that and keeps communicating with all those followers? The profile's name isn't the important aspect at all, its the relationships the follower numbers represent.

Meaningful connections on the social Web are built on reputation and relationships consumers feel they are forming with brands. In the right circumstances consumers may come to form those relationships with the people behind the brands, particularly if they are known. In the PhoneDog and Rick Sanchez examples, Twitter followers formed relationships of a sort with Noah Kravitz and Rick Sanchez, respectively. The connections to the PhoneDog and CNN brands, respectively, were secondary and when these two men parted ways with their former employers and their followers remained with them, that reinforced those relationships.

Imagine a somewhat more benign and yet equally problematic scenario: you employed a man as your company's evangelist and he developed a pretty popular following based on his personality, drive and charisma. Imagine he leaves your company and goes to work somewhere else, taking his Twitter followers with him. Imagine those followers are introduced to another company, another brand, another set of products and services before he leaves that company and moved to another, and then another. His popularity only grows over time and his following becomes more and more valuable along the way. Aside from any suggestion of impropriety, this pretty much describes Robert Scoble, a well known and authoritative tech pundit.

In Scoble's case there is no suggestion that he acted unlawfully but his case is a better example of how portable relationships can be on the social Web. When you add a competitive dimension to the mix you have a recipe for real harm to a company's relationships with its customers, its brand and possibly even its competitive advantage. In unlawful competition terms, you have the risk that an employee could use the reputation he developed with a company's customers as a springboard for his competing business or to help give a competitor an undeserved boost. In the PhoneDog case, PhoneDog unsuccessfully argued that the Twitter followers Kravitz took with him was a trade secret. That argument probably wouldn't fly in South Africa either. Twitter followers are typically public and there is no secrecy there. Another factor which could form the basis of a claim is the goodwill a company may have established with its customers through social media and which would be interfered with when the ex-employee moves to a competitor.

There is certainly tremendous value in using social media to cultivate and develop relationships with customers but companies that fail to anticipate individual employees (or even groups of employees) migrating those customers to competing businesses, and catering for that, are at risk.

How tweeting can get you fired

Mail & Guardian had a story a week or so ago about rugby commentator Andrew Lanning's dismissal by SuperSport after he tweeted information about SuperSport and its parent company, Multichoice. The article's title, "Fired for tweeting", was a little misleading (the article clarified the issue, though) and that idea of being fired for using Twitter no doubt caught readers' attention. The real reason for his dismissal isn't nearly as sensational and happens far more often than you may think.

Candice Jones, the article's author (and TechCentral's deputy editor), captured the real issue at the beginning of the article:

The broadcaster's communications manager, Clinton van der Berg, says it "regrets that Lanning, while attending a commentary workshop at SuperSport on Wednesday, chose to tweet various confidential matters pertaining to both SuperSport and SA Rugby".

Van der Berg says Lanning's actions were contrary to company policy. Although the company has a social media policy in place, it says this wasn't necessarily breached. However, Lanning's posts breached confidentiality and would have been actionable no matter the medium used.

Lanning did what innumerable employees have done before him. He divulged confidential information he appears to have been contractually prohibited from disclosing. What is novel about his disclosure is the medium he used, Twitter, and its immediacy. What I find curious about the article is that SuperSport's representative commented that while "the company has a social media policy in place, it says this wasn't necessarily breached". If Lanning did divulge confidential information and this wasn't a breach of SuperSport's social media policy then this discrepancy suggests that the SuperSport social media policy hasn't been adequately drafted. While social media policies should not be drafted as punitive frameworks, they should tie social media use into a company's broader policy framework and this should include how confidential information is protected.

This story touches on a number of conflicting considerations. For starters, a confidentiality breach is still a breach if it occurs on Twitter, a blog post or in a phone conversation. To a large extent, the medium is irrelevant. On the other hand, if the information was not confidential then was Lanning's right to freedom of expression violated? A number of organisations are unsure about what social services like Twitter and Facebook and their implications and tend to react out of fear than a meaningful understanding of what these services are and their associated risks. The memeburn post about Lanning's dismissal lists a couple other instances where tweeting has been banned and I find myself wondering how often these sorts of bans are motivated by panic, as opposed to a need to protect a legitimate interest.

Certainly, there are many instances where Twitter use can cause real harm. A bank employee tweeting sensitive information right before a bank announces its results could have real economic implications for the bank, for example. There are a number of similar examples of where people should not be permitted to tweet about sensitive information because doing so could cause some form of harm. The same principle applies to other forms of publishing like blogs, Facebook posts and so on. Virtually real-time publishing tools like Twitter introduce an immediacy and scale that wasn't present at all or to such an extent previously and that means that companies must approach social media use on a well-informed and holistic basis.

Companies should ensure that their employees are adequately informed about the company's interest in protecting its confidential information and how they can help achieve this. They should be educated about the risks of using social media to publish potentially sensitive information. That education frequently includes an adequately drafted social media policy which dovetails with the company's existing policy and contractual framework. Ultimately if an employee divulges confidential information, whether it be on Twitter or otherwise, it is likely actionable and could well lead to the employee's dismissal.

Why our obsession with Facebook should matter to you

I just noticed this on Mashable and thought I would share it with you. There are some pretty interesting statistics which are worth bearing in mind when developing an approach to Facebook as a marketing channel as well as developing your approach to your employees' social media use, whether that be through a social media policy or similar policy framework within your business.

What is revealing about this infographic is that Facebook is an increasing part of younger people's lives, as well as us older types. This becomes an important consideration when deciding how much access to the social Web employers will permit. One risk (and I think it is a real risk) is that prospective hires may shy away from employers that are more restrictive than those who permit more moderate access to the social Web. Another consideration is how much news and information people receive through social networks. Often this news and information is what enables people to do their jobs a little more effectively in an increasingly connected world. Cutting off access to those social networks is going to be increasingly analogous to denying employees access to email.

Via: Online Schools