Employers have long been recognised as the owners of client and customer databases developed by employees in the course of employment. But with online social media forums rising to the fore, the divide between what is or isn't owned by an employer has become increasingly blurry.
Currently in the US, an employer is pursuing a former employee based on his continued use of a Twitter account post-employment. The employer is an "interactive mobile news and reviews web resource" whose services include reviewing mobile products and services. The employer used a variety of social media, including Twitter, to market and promote its services.
The employee's duties included providing product reviews which were transmitted via a variety of mediums including a Twitter account. The employee was given the password to access the Twitter account to disseminate information and promote the employer's services. After resigning, despite being asked to relinquish the account to the employer, the employee retained the 17,000 account followers and changed the Twitter account name to remove the reference to the employer.
The employer alleges that it owns the Twitter account and that it contains trade secrets; being the compilation of followers and the password used to access the account. The employer is pursuing the employee in claims of misappropriation of trade secrets and conversion based on the employee's continued use of the Twitter account. The employer claims $340,000 in damages, calculated by valuing each follower at $2.50 per month for a period of 8 months.
The case is yet to be determined and raises some interesting questions. Does a Twitter account really constitute a "trade secret" akin to a customer database which could give up a competitor a commercial advantage? Does an employer really "own" an account which is made up of followers who choose whether they do or don't subscribe? If so, how does the employer prove that each follower in fact represents a monetary value which, having been lost, justifies damages? How do followers feel about being given a $2.50 price tag?
Until the Australian Courts are faced with the same issues, we'll need to monitor overseas developments in the hope of receiving some guidance. In the meantime, employers should consider including a provision in employment contracts which is clear on ownership of workrelated social media accounts, particularly if generating contacts is a key part of the employee's role. Whether a Court would be satisfied that this answers the ownership question remains to be tested, but at least there would be a platform for assessing ownership.
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