If you purport to blog about social media and the law, and you don’t have a post about the PhoneDog case, it might be time for an update (thus this post). For those who don’t know, PhoneDog is currently in a lawsuit with Noah Kravitz, a former employee, over who owns a twitter account that Kravitz created while he was an employee at PhoneDog.
The New York Times provides an excellent summary of the lawsuit:
Many are focused on what the outcome will be. Briefly, I think PhoneDog wins–from what I understand, Kravitz created the account while at PhoneDog, created it in order to perform his job duties for PhoneDog, and used it almost exclusively, if not exclusively, to do exactly what the account was created for: promote PhoneDog and create a following.
The outcome will be interesting and will affect how employers handle similar situations. It will be the first case establishing some sort of precedence concerning who “owns” a social media account, particularly in instances where the account is used by others. Regardless of the outcome, I can guarantee you that social media policies around the country are being revised right now.
As I suggested in an article over at the Association of Certified E-Discovery Specialists (aceds), employers might consider revising their policies to clarify that:
• that the business owns the account,
• that the employee has no right to use the account after termination of employment,
• that the employee must turn over the account upon termination of employment,
• only the employer is allowed to change account names and settings.
The full article, which includes a lot of useful insight from other social media experts can be found at:
- Twitter account ownership at issue in San Francisco federal case, as businesses, firms and others brace for fallout
The most interesting thing about this case, for me at least, is the damages calculation. PhoneDog claims it is entitled to $2.50 per follower, per month, for eight months. With Kravitz having approximately 17,000 followers, the “damages” equate to about $340,000. Of course, PhoneDog wants punitive damages as well. The number is completely arbitrary. It makes no sense and I can’t imagine that PhoneDog’s damages model will stand up unless they can somehow offer evidence that supports the crazy notion. I simply don’t see how you can attempt to “value” each individual follower. I know what PhoneDog’s lawyers were doing–they were simply trying to put together a damages figure and explain how they reached it. I just think they did it poorly.
It’s clear that PhoneDog’s damages model is flawed. But it will be interesting to see, assuming PhoneDog wins, how the lawyers (and by lawyers, I mean expert witnesses), attempt to establish the damages that PhoneDog lost as a result of Kravitz’s use of the account while he was no longer an employee. It is definitely a case worth following.