Publisher and journalist in court over ownership of Twitter followers

Back in the summer there was a lot of interest in the move of reporter Laura Kuenssberg as she changed jobs from chief political correspondent for the BBC to the business editor of ITV. In the process the BBC lost 60000 Twitter followers to ITV. A win for the commercial broadcaster.

It sparked a big debate about who owns Twitter followers? Is it the journalist or the employer on whose time these accounts are built up. In the case of Kuenssberg it seemed the journalist, but a judge in the US has refused to dismiss a case where mobile phone news site PhoneDog is arguing that a former reporter had no right to leave with 17,000 followers that it valued at $2.50 a follower.

PhoneDog is arguing a Twitter password and the identity of followers are a trade secret and that former journalist, Noah Kravitz, should have handed over the password to his Twitter account when he left. The account had originally been set up with the name @phonedog_noah and which Kravitz simply changed to @noahkravitz as he went to work for a rival site TechnoBuffalo.

He changed his account much in the same way that Kuenssberg changed hers and former CNN anchor Rick Sanchez changed his after he was fired last year.

PhoneDog has asked for $340,000 in damages. How did it get this figure? It says it is based on what it says is a $2.50 industry value per follower (really?) that it multiplied by the 17,000 followers to get $42,500 that it then multiplied by the months since Kravitz had left its employ. That $2.5 figure is a new one on me.

That seems a lot for a bunch of people who can unfollow you at whim and random.

However, US Magistrate Judge Maria-Elena James in a San Francisco court gave PhoneDog permission to proceed with its trade secret misappropriation lawsuit after she refused Kravitz’s motion to dismiss.

She rejected Kravitz’s plea that the calculation was flawed and his argument that the suit had to be thrown out because PhoneDog hadn’t established it was the rightful owner of the account.

Judge James ruled: “Whether PhoneDog has any property interest in the Twitter account cannot be resolved on the record at this stage in the case. Likewise, should PhoneDog be able to establish that it has some property interest in the Twitter account or the password and follower list, the question becomes what is the proper valuation of such items. Again, the parties have proffered competing methodologies for valuing the account, and on this limited record, the court is unable to resolve this dispute at this juncture.”

What’s so interesting here is that as the size of these accounts grow they become more and more valuable to all concerned: both as a traffic driver for the publisher and as  a CV calling card for the reporter.

Today we are talking about 17,000 followers, but the numbers get getting bigger as Twitter grows. For instance @itvlaurak now has more than 70,000 followers. That’s a mini broadcast network in itself.

In some cases it is not hard to imagine a reporter leaving who is the main Twitter point of contact for a magazine or website. That could be the equivalent of socially holing the publication below the waterline.

Venkat Balasubramani of the Technology & Marketing Law Blog has a good post on this and asks:

“Was the password really a trade secret? Is an account’s follower list a trade secret? Social media account information does not fit nicely within the trade secret box.

“Even if the list were public, could anyone “download” the list? Could Noah have contacted the list any other way than through the account that he’s supposed to turn over? What if Noah had posted a “goodbye” tweet saying “follow me at [new account name]”? With respect to the conversion issue, the court’s analysis was disappointingly brief. It’s interesting that, in this case, PhoneDog has its own Twitter account and this particular account was one set up specifically for Kravitz–it’s not as if he took the company’s one and only Twitter account. One other claim you often see discussed in this context is a trademark-based claim. Kravitz likely averted these by changing the name of the account, and presumably removing any PhoneDog branding elements.”

I would have thought that the branding issue is the key one here. The original account was branded PhoneDog — changing it should be the issue, no?

As Tom Callow blogged here earlier this year re Kuenssberg:

“When she had earlier tweeted the details of a new separate ITV account to her then 59,000 followers, only around 1,000 of them started following the new account.”

A mere 1,000 followers is no 60,000 so Kuenssberg took the account. If companies want to follow a policy where all staff operate company branded accounts then they need to put this into staff contracts that these belong to the company and not the employee.

Until that happens this will be very interesting to watch.