Presentation at 2019 World Journalism Education Congress held in Paris, France.
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Abstract:
It’s the policy of an increasing number of news outlets to retain ownership of the professional social media accounts of their reporters. In the first case of its kind in the United States, one outlet took a former employee to court over the question of ownership. The Roanoke Times in Virginia filed a suit in 2018 against a former sports reporter, alleging a breach of its social media policy. The reporter, who left his position at the Times for a competing news outlet, took with him the Twitter account he had used as part of his work with the outlet. This paper will explore a host of uncharted practical and legal implications this type of case raises for the industry, with the potential of journalists finding themselves in the middle of a legal battle. The authors first synthesize the current scholarly literature, industry best practices, and related case law, albeit dearth. The authors argue that utilizing trade secret laws to assert ownership of an employee’s account(s), a strategy used in the Times case and other related lawsuits, is an ill-fitted approach. Social media accounts and their associated followers are not “secret.” A comprehensive policy could prevent legal action in the first place by providing employees with guidelines that address a myriad of issues discussed in this paper. The authors offer provisions of a policy that would protect news outlets while also acknowledging the importance of social media accounts to the livelihood of journalists and to the free flow of information from journalists to the public.
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Ownership of Employee Social Media Accounts: Implications for Journalists
1. Newsroom Ownership of
Employee Social Media Accounts:
Implications for Journalists
Anthony Adornato (@AnthonyAdornato)
Andrew Horsfall
2019 World Journalism Education
Congress
Paris, France
2.
3. 2017 Social Media Policy Survey
Ownership
It’s the policy of a majority (66%) of U.S.
television newsrooms to own the
professional social media accounts of its
journalists.
Source: You Can’t Post That!: Social Media Policies in U.S. Television Newsrooms (2017)
4. Social Media in the Journalism Industry
Newsrooms rely on their employees to
execute the outlet’s social media strategy,
most notably the individual journalists’
activities on social media accounts that have
their own names attached to them.
Journalists are curating the content and
building followers.
5. Main Issues
What’s considered a “professional” account?
What about previously “personal” accounts
that are now used for professional purposes?
Who set up the account?
What steps did the outlet take to maintain
control of the account?
What happens when a journalist leaves an
outlet?
Is there any case in which employees should
be allowed to take the account with them?
6. Cases
BH Media v. Bitter (2018)
• Account set-up by a former employee who gave
credentials to Bitter.
• Trade secret law used instead of contract law.
BH Media: Twitter followers are equivalent to a
customer list with significant economic value.
• BH Media highlighted what it considered the
value of the account’s list of approximately
27,100 followers.
• Settlement: Bitter retains ownership of account
7. Cases
PhoneDog v. Kravitz (2011)
• Employer, online cell phone news/reviews website,
sued former employee for failure to turn over
Twitter account (@PhoneDog_Kravitz) built and
cultivated course of his work.
• The court allowed the employer’s trade secret claim
to move on to discovery but the case settled and
the employee retained the account (@noahkravitz).
Eagle v. Morgan (2013)
• Terms of Service: Employer interfered with
employee’s agreement with LinkedIn.
• Court says: “LinkedIn [] connections [do not]
qualify as trade secrets.”
8. Trade Secret Law
Information is a trade secret when the
material in question derives independent
economic value from not being generally
known to or readily ascertainable by
people who can obtain economic value from
its disclosure or use.
Must be efforts to maintain secrecy of
information.
9. Social Media Followers
Social media followers are not “trade
secrets” because they are “generally known”
to the public.
Lists of followers are in the public domain
online, and in the digital marketplace a
business has many tools at its disposal to
identify competitors’ lists of followers and
target those followers.
10. Independent Economic Value
The “value” paradox: social media followers do not
derive “independent economic value.”
Journalists have a “commercial interest” in their social
media persona and a right to protect it. (Maremont v.
Susan Fredman Design Group, Ltd.)
A reporter’s brand -- with its built-in audience of
followers -- is “capital” to some hiring managers.
Therefore, journalists have a social and commercial
interest in their own social media identity.
Supreme Court of Connecticut: “a former employee
will not be said to have misappropriated that secret if
he or she was in charge of cultivating the information.”
(Robert S. Weiss Associates, Inc. v. Wiederlight)
11. Conclusion
Social media policies: Balancing the interests
of employees and employers.
Companies should turn to contract law -- both
social media policies and employment
agreements -- to help prevent and resolve
issues related to ownership of social media
accounts.
12. Conclusion
What should a policy address?
• Accounts(s) previously created by journalists.
• How new accounts are set-up: with company email
and by a manager.
• Any changes to password must be communicated to
management.
• The company will transfer ownership of a social
media account(s) to a departing employee as long
as that person is not going to work for a direct
competitor.
• Management is permitted to access employees’
social media accounts, particularly for factual errors.
• Trade secret provision would be difficult to defend.
13. In the Classroom
Journalism Law courses
Evaluate policies
Creation and maintenance of
separate professional and
personal accounts
14. Newsroom Ownership of
Employee Social Media Accounts:
Implications for Journalists
Anthony Adornato (@AnthonyAdornato)
Andrew Horsfall
2019 World Journalism Education
Congress
Paris, France
Hinweis der Redaktion
+The fact that individual employees’ activities on their own accounts is such an integral part of the journalism industry sets the BH Media v. Bitter case apart from those involving other fields.
+Note that this is very different than most other industries: they mostly rely on the branded accounts of a company, not individual employee accounts.
Courts haven’t been able to fully develop the answers to these questions (from the previous slide) because there have only been a handful of cases to raise the question of ownership and they have all settled out of court before a decision on the merits could be articulated by the courts.
That said, we’re seeing some interesting theories of law emerge in this first line of cases. One common – and misguided – theory from the employers is that the social media account and its followers constitute trade secrets of the employer and therefore possess a protectable interest in favor of the employer. (It’s important to note for a foreign audience that these cases are being filed in federal court because of alleged violations of federal laws like the federal Uniform Trade Secrets Act.)
We see that in the Bitter case, which is also the first case among the few out there that arises in the context of the journalism industry.
Cover notes from slide + mention that he signed a social media policy.
Before Bitter, there was PhoneDog and Eagle. Both important for different reasons.
At a top-level birdseye view, PhoneDog involves a scenario that we could easily see play out in the journalism industry. An employee builds and cultivates a following on a social media account used in the course of the journalists work. (Policy???)
The facts in Eagle are interesting because there we have an employee who (1) created a LinkedIn account in her name, (2) that was accessible by other employees, (3) there was a social media policy in place but it did not speak directly to ownership, and (4) the employer who took control over Eagle’s account after she left.
Eagle is the first and only decision on the merits, issued by the Judge at the end of the trial. By this point in the case, the trade secret issue had already been – somewhat awkwardly – disposed of by the court on a prior motion.
Curious to know how these issues would play out in the European context given rules and approaches to privacy and a climate that generally favors employees/people over companies. Solicit thoughts from the audience.
There’s a somewhat surprising development, though, in Eagle’s claim for tortious interference with a contract. There, the court inferred that a contract existed between Eagle and LinkedIn by virtue of LinkedIn’s Terms of Service (essentially saying “As between you and others (including your employer) your account belongs to you.”) From this, the employer’s relinquishment of Eagle’s LinkedIn account satisfied the court’s inquiry into those elements of the tort of interference.
Unfortunately, as with Eagle’s other claims. She could not articulate actual damages in the value of her account and so she did not recover from her employer beyond simply retaining control of her LinkedIn Account.
So given that, in each of these cases, the theory of trade secret violations is alleged, we want to examine further the cause of action alleging misappropriation of a trade secret… and ultimately articulate how this theory is misplaced in the context of these cases.
The foundational issue is whether the material in question is, in fact, a trade secret.
I think it’s clear to all of us that social media followers are not secret. It defies the purpose of online social communities like Twitter, Facebook, etc. to argue that one’s followers are secret.
In the context of the journalism industry, social media is a tool of the trade to disseminate information, and communicate with the audience, and cultivate one’s persona as a journalist in an open and public forum.
There’s no doubt that social media has/is changing the news industry and that news outlets derives an economic benefit from having a social media presence (vis a vis, subscription-based news consumption, advertising revenue, etc.)
The economic value derived by a news outlet from its social media presence shouldn’t be confused with, nor can it minimize, the very real social value and commercial interests that journalists accrue through their own social media presence.
Tension therefore exists, but in balancing these two sets of interests trade secret law also tells us to assess whether the purported secret (i.e. here, a journalist’s social media followers) provide a substantial business advantage to the news outlet. To decide in favor of the employer wholly ignores the not only the value a journalist derives from his/her own followers, but also disincentives a journalist from taking the time to build and cultivate his/her social media persona and following.
A better approach to establishing and defining ownership--and avoiding litigation in the first place--is through well-articulated policies and practices. A newsroom social media policy should (i) define the terms of ownership while also recognizing social media companies’ user agreements, and (ii) balance the interests of the employee and its employees.
