United States: #Secrettweets: Protecting Social Media As A Trade Secret?

Last Updated: September 12 2018
Article by Michael D. Weil and Lauren Seaton

Social media today connects people more than ever. It can be a means to bring together long-lost friends, new acquaintances, and love interests, or the public with celebrities, sports teams, new products, and companies—to name just a few. It can be an effective way to market images and products, as it has the potential to reach thousands instantly with the click of a button. With such public uses and goals, social media seems like an odd candidate for trade secret protection. Yet, that is precisely what BH Media Inc. is seeking to protect in its complaint, filed with the Western District of Virginia on August 6, 2018 against a former employee, Andy Bitter.

According to BH Media, Bitter acquired a Twitter account from BH Media during the course of his employment as a staff writer focusing on Virginia Tech athletics and providing content for BH Media's Roanoke Times. While employed with BH Media, Bitter used the account to promote the Roanoke Times, gaining 27,100 followers. When Bitter left BH Media for a competitor on July 6, 2018, he declined to provide BH Media with access to the Twitter account. Instead, he changed the Twitter handle to @AndyBitterVT and continues to use the account to tweet information to his followers.

In its complaint, BH Media alleged that the Twitter account is a protected trade secret: claiming that the account itself, as well as the account manager's private access to a unique group of followers, a unique Twitter Feed, and direct messages from followers is all information that is not publicly available or readily ascertainable from outside sources.

Just last week, on August 30, 2018, Bitter responded to the complaint, filing an answer, affirmative defenses, and a counterclaim for defamation. In his answer, Bitter denies that the Twitter account at issue is a trade secret. Bitter alleges in his counterclaim that Kyle Tucker, a staff writer who focused on Virginia Tech athletics before Bitter was hired to replace him—not BH Media—was the former owner of the account. Although Tucker was Bitter's predecessor, Bitter alleges that the account was not created or transferred to Bitter as a company asset. Instead, when Tucker left his position he moved to Kentucky and, according to Bitter, Tucker believed his Twitter followers would be more interested in following Bitter's tweets about Virginia Tech athletics than Kentucky sports. Therefore, Tucker transferred the account directly to Bitter.

Although somewhat akin to customer lists, which have been found to be protectable trade secrets, followers on Twitter are public, allowing anyone who views a Twitter account page to see what individuals or entities are following that account. Ultimately, BH Media will need to demonstrate that there is value in established social media accounts, beyond a list of public followers, which may prove difficult to do given that social media, by its very nature, is public. Stay tuned—here at Trade Secrets Watch, we'll be sure to keep an eye on this case as it develops and the implications it might have on how companies and individuals use and protect their social media accounts.

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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Orrick’s Global Japan Practice is hosting a series of “Orrick Library” seminars to explore legal issues in various fields in Japan as well as the United States, Asia and Europe

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Julie Totten is Program Chair of this year’s conference, Lynne Hermle is speaking on women in the courtroom, boardroom, and c-suite, and Erin Connell is speaking on pay equity and pay transparency.

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