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
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.
Questions? Give us a call.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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