By: Laura Bellini
In the age of twenty-four-hour news cycle, reporters are responsible for reaching a wider audience. Reporters use social media accounts, like Twitter, to create a buzz about their articles and to connect with their readers. So, the question is do employees have to turn over their social media accounts, including the following that they built, if they move from one publication to another?
On Monday, August 6, 2018, BH Media Group (“BH Media”) filed a complaint against a former employee, Andy Bitter, for ownership of the Twitter account, @AndyBitterVT. [1] Bitter left his job as a sports reporter for The Roanoke Times after seven years to work for a competitor, The Athletic. [2] Bitter tweeted from @AndyBitterVT informing fans of his job change and furthermore that he is “not going far” and “don’t unfollow.” [3] He continued to use @AndyBitterVT to promote The Athletic, his new employer. [4]
BH Media alleges that a former employee of The Roanoke Times created @AndyBitterVT before Bitter was hired and Bitter took it over after he was hired. [5] Thus, BH Media claims that Bitter is stealing company trade secrets by not relinquishing @AndyBitterVT. [6]
Trade secrets are defined as information that “can include a formula, pattern, compilation, program, device, method, technique or process.” [7] Additionally, trade secrets must be used in business giving an opportunity for economic advantage over competitors who do not know or do not use it. [8] In order to be classified as a trade secret, companies must make reasonable effort to keep this type of information confidential. [9]
This issue is not a novelty. In 2011, Phonedog sued a former employee, Noah Kravitz, for using his Twitter account after leaving the company. [10] Phonedog argued, similarly to BH Media, that the Twitter account contained trade secrets. [11] The case settled privately and Kravitz kept his Twitter account. [12]
BH Media claims that since only employees have access to the user list, Twitter feed, and direct messages they are trade secrets. [13] Thus, Bitter keeping @AndyBitterVT is a violation of the Defend Trade Secrets Act the Virginia Uniform Trade Secrets Act, the Computer Fraud and Abuse Act, the Stored Communication Act, and the Virginia Computer Crimes Act. [14]
The question is, is this public information, which is distributed to thousands of people per day truly a trade secret? That is why some argue that since many features on Twitter are public, such as an account’s following, they cannot be classified as trade secrets. In Eagle v. Morgan, the Eastern District of Pennsylvania held that an employee’s LinkedIn connections were not trade secrets because they were available for public view. [15] Nonetheless, the court found in favor of the employer because the employer developed the accounts and any work done via LinkedIn was due to employer instruction. [16]
Only time will tell if Andy Bitter will have to give up @AndyBitterVT and rebuild his following on a new account. From a legal standpoint, it will be most interesting to see if the court chooses to define social media accounts as trade secrets. Regardless of what their decision is, their decision will affect this evolving area of law and employees with company Twitter accounts.
[1]BH Media Group, Inc. v. Bitter, Civil Action No. 7:18CV388 (W.D.Va. filed Aug. 6, 2018).
[2]Id.at 6.
[3]Andy Bitter (@AndyBitterVT) Twitter(July 6, 2018, 9:42 AM), https://twitter.com/AndyBitterVT/status/1015244703594315776.
[4]Id.
[5]BH Media Group, Civil Action No. 7:18CV388 at 3-4.
[6]Id. at 8-9.
[7]United States Patent and Trademark Office, IP Policy, Trade Secret Policy, https://www.uspto.gov/patents-getting-started/international-protection/trade-secret-policy.
[8]Id.
[9]Michael Bunis & Diana Huang, Are Social Networking Contacts Trade Secrets?,Law360(Dec. 11, 2012, 12:48 PM), https://www.law360.com/articles/400634/are-social-networking-contacts-trade-secrets-.
[10]Phonedog, LLC v. Kravitz, Case No. C11-03474 (N.D.Cal. filed Jul. 15, 2011).
[11]Id.
[12]Trade Secrets Institute, Case Report: Phonedog v. Kravitz, http://tsi.brooklaw.edu/cases/%5Bfield_case_reference-title-raw%5D/reports/case-report-phonedog-v-kravitz.
[13]BH Media Group, Civil Action No. 7:18CV388 at 1.
[14]Id.
[15]Bunis & Huang, supra note 9.
[16]Id.
The L•E•Jer 