UK: Who Owns Your Facebook Likes?

Last Updated: 22 October 2014
Article by Margaret Tofalides and Kimberley Smith

A case recently came before a district court in Florida about who owned the 'likes' of a Facebook page for a television programme. Margaret Tofalides and Kimberley Smith discuss the case and how such likes might be protected under English law.

The use of social media as a communication tool in business has increased exponentially over the past decade. These platforms are normally free of charge, but companies invest significant resources in their creation and upkeep. The platform, along with any associated "follower", "like" or other endorsement gained, is recognised to be valuable asset. But who owns these assets and how does this work in a global data environment? A recent US case sheds light on some of these issues, which will undoubtedly end up impacting other jurisdictions.

Mattocks v Black Entertainment Television

In August, the district court for the Southern District of Florida considered the question of who owned "likes" on Facebook.1

In 2008, Stacey Mattocks, a fan of a television show called The Game, created a Facebook fan page for the show. When The Game was cancelled in 2009, Mattocks continued to promote the show in the hope that a network would pick it back up. Mattocks' efforts were successful and after gaining over 750,000 "Likes", Black Entertainment Network ("BET") picked up the show.

Recognising the popularity of Mattocks' page, BET hired her to perform part-time work for the company and eventually, BET and Mattocks entered into a 'letter agreement' in which Mattocks agreed to grant BET administrative access to the page and, in return, BET agreed not to exclude Mattocks from it. A year later, following disputes as to Mattocks' exact terms of employment with BET, she demoted BET's administrative access to the page. In response, BET asked Facebook to "migrate fans" of Mattocks' page to their own official page and sent Mattocks a cease- and-desist letter. After a review of the page, Facebook granted BET's request.

Mattocks then brought an action against BET claiming that the network had (i) tortiously interfered with her contractual relationship with Facebook; (ii) breached the letter agreement; (iii) breached a duty of good faith and fair dealing; and (iv) converted a business interest that she held in the Facebook page. Mattocks alleged that as a result of BET's actions, she lost potential income from other companies, including Google AdSense, which paid her for redirecting users. The court granted BET's motion for summary judgement, dismissing all four of Mattocks' claims. However, on 18 September, Mattocks filed a notice of appeal and so the case continues.

"The district court found that Mattocks failed at the first hurdle: to establish that she owned a property interest in the 'likes' on the Facebook page."

Conversion

Under Florida law, "a conversion is an unauthorised act which deprives another of his property permanently or for an indefinite time."2 To establish the tort of conversion in English law, there must also be an intention to deny the owner's rights or to assert a right inconsistent with them.

Back in Florida, the district court found that Mattocks failed at the first hurdle: to establish that she owned a property interest in the "likes" on the Facebook page. This was due in large part to the fact that, at any time, a user is free to revoke the "like" by clicking the "unlike" button and so the district court surmised:

"If anyone can be deemed to own the "likes on a page, it is the individual users responsible for them... the "likes" cannot be converted in the same manner as goodwill or other intangible business interests".

In Kremen v Cohen,3 the US Court of Appeals for the Ninth Circuit imposed a three part test to decide whether registrants have property rights in their domain names. First, is the interest capable of precise definition? If so, is the interest capable of exclusive possession or control? If yes again, has the owner established a legitimate claim to exclusivity?

While the Florida district court did not mention the Kremen test in its judgement, if applied it seems apparent that the "likes" are doomed to fail. Even if the "likes" were capable of precise definition, Mattocks did not have exclusive possession or control of the "likes", nor could she have established a legitimate claim to exclusivity.

PhoneDog v Kravitz

It is not just Facebook testing the limits of intangible property. In PhoneDog v Kravitz4 a dispute arose from the continued use by Kravtiz, after his employment had terminated, of a Twitter account that PhoneDog alleged it owned and contained trade secrets.

In a motion to dismiss the claim, Kravitz questioned PhoneDog's proprietary interest in the account and his arguments echoed that of the district court's in Mattocks: he argued that "'(f)ollowers' are human beings who have the discretion to subscribe and/or unsubscribe to the account without the consent of PhoneDog". Twitter's terms of service also state that Twitter accounts belong to Twitter and not to Twitter users. PhoneDog countered that it has an ownership interest in the account based on "the licence granted to it by Twitter to use and access the account, in the account's list of followers, and in the content submitted to the account". PhoneDog also alleged that it had an "intangible property interest" in the Twitter account's list of followers, which it compared to a business customer list.

The court held that PhoneDog's property interest in the account could not be resolved at that stage, but found that PhoneDog had "adequately alleged that it owns or has the right to possess the account" and thus, rejected Kravitz's motion to dismiss the conversion claim. The claim was later dismissed by agreement with the parties and so the issue was never resolved, although Kravtiz did appear to retain sole use and control of the account.

How to protect your "likes" in the UK

Unlike the US where conversion can be used to protect intangible property, the majority in the UK case OBG Ltd v Allan5 held that there be no conversion of incorporeal assets. The decision in OBG has been criticised not least because the offence of theft, the closest criminal law analogue to the tort of conversion, was widened to include intangible property over 40 years ago.6

So the question remains, is there a cause of action that can adequately cover these business interests? One strong contender is unjust enrichment, which is based upon the notion that one party has been "enriched" at the other's expense. To be successful in a claim of unjust enrichment, a claimant must establish that (i) the defendant has been enriched or has received a benefit; (ii) that that enrichment is unjust; and (iii) that the enrichment was at the expense of the claimant.7

If the test is applied to a scenario such as Mattocks' in the UK, it is unclear whether the transfer of Facebook "likes" would fall into a category of case currently recognised as enrichment. However, the court in Gibb v Maidstone & Tunbridge Wells NHS Trust8 acknowledged that "the law in this field has been developed incrementally" and emphasised that "the categories of unjust enrichment claims cannot be closed".

In the ordinary sense of the word, it is clear that BET gained a benefit from Mattocks's "likes" or they would not have asked Facebook to transfer them. Facebook "likes" can also be valued: weselllikes.com, which calls itself the "#1 social media marketplace", has packages ranging from US$30 for 1,000 worldwide "likes" to US$500 for 10,000 "likes" from US accounts. The US State Department even spent US$630,000 to increase its Facebook "likes" in 2011 and 2012 according to an inspector general's report.

"For the sake of harmonisation, it is hoped that the legal framework will be updated to protect the valuable assets in social media."

If a court would agree that the transfer of Facebook "likes" amounted to enrichment, a claimant such as Mattocks may unfortunately fail to show that the enrichment was unjust. In Mattocks' claim for conversion, the district court held that she could not demonstrate that BET had acted wrongfully. BET had asked Facebook to transfer the "likes", Facebook had then reviewed the page in accordance with its own policies and determined that BET's request was valid and thus completed the transfer. However, if such a transfer had been made wrongfully then it is difficult to see where a claim for unjust enrichment would fail.

Next steps

The enormous value of social media is undeniable but, until such a case comes before a court in the UK or elsewhere in Europe, it is unclear whether the current law is adequate to give protection to the investment of time, money and other resources devoted to developing a social media platform.

The growth of social media has so far outpaced the development of the law, which has resulted in a mix bag framework, made up of legal regulation, industry standards and contractual agreements between consumer
and company. For the sake of harmonisation, it is hoped that the legal framework will be updated to protect the valuable assets in social media, but caution must be heeded when legal regulation is imposed on the volatile nature of online activities. The Court of Justice of the European Union's May ruling on the "right to be forgotten"9 is an example of this, with Google struggling to understand how exactly to implement the EU Data Protection Directive.10

While, in the UK at least, unjust enrichment may provide protection for assets in social media, until such time as the law develops sufficiently to safeguard these assets, ownership rights should be set out clearly in contractual provisions in order to protect these business interests.

Footnotes

1. Stacey Mattocks v Black Entertainment Television LLC, 13-61582-CIV-COHN/SELTZER.
2. Fogade v ENB Revocable Trust, 263 F.3d 1274 1291 (11th Cir 2001)
3. Kremen v Cohen, 01-15899, DC No. CV-98- 20718-JW (9th Cir July 25, 2003.
4. C 11-03474 MEJ (district court, ND California). 5. [2007] UKHL 21.
6. Theft Act 1968, s.4(1).
7. Banque Financière de la Cité v Parc (Battersea)
Limited [1999] 1 AC 221 at 234C.
8. [2010] EWCA Civ 678.
9. Google Spain SL, Google Inc v Agencia Espanola
de Proteccion de Datos, Mario Costeja Gonzalez
(C-131/12).
10. Directive 95/46 on the protection of individuals
with regard to the processing of personal data and on the free movement of such data.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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