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By Alexandra Reid

As a technology journalist and editor, Noah Kravitz is used to being on the perceiving side of the media lens. But for the last week, he has become the media’s focus as a dispute lasting more than a year with his former employer Phonedog.com escalated into a court case The New York Times says “will establish precedent in the online world, as it relates to ownership of social media accounts.”

The dispute began in October 2010 when Kravitz, a writer living in Oakland, Calif., quit his job at mobile phone site Phonedog.com. While at the company, Kravitz began engaging a following on Twitter under the name Phonedog_Noah. After almost four years, he had built a community of 17,000 followers. When he left, Kravitz said Phonedog told him he could keep his Twitter account in exchange for posting on the account occasionally for the company, reports The New York Times. As they were parting on amicable terms, Kravitz agreed. He began writing as NoahKravitz and developed his community for eight months after leaving the company. It was at this time that Phonedog sued Kravitz, saying the Twitter list was a customer list. It sought damages of $2.50 per month per follower for eight months, totaling $340,000.

Kravitz said the lawsuit was in retaliation for his claim to 15 percent of the site’s gross advertising revenue because of his position as a vested partner, as well as back pay related to his position as a video reviewer and blogger for the site, says The New York Times.

Kravitz stated it was not his intention to “air (his) dirty laundry in public, let alone try to capitalize on it by putting negative energy out into the world.” Yet he has written a lengthy article and permitted journalists to interview him because he says this case has implications that will impact all of us.

He’s right.

“It doesn’t matter if you’re trained as a journalist, work in the marketing department, or are a high school student who loves to microblog: We all have voices, and those voices can reach more ears than ever before. The yet-to-be-written rules that govern how we’re allowed to use and listen to those voices will become amazingly important to all of us – future generations perhaps most of all,” he says. “Learn the facts, read the opinions, talk and tweet and listen and comment – take the time to get informed and help shape policies before they’re written.”

I’m not a lawyer and I’m not an IP specialist (though I did interview one for this post). I don’t have all the necessary details to form a complete picture and make a firm decision on this case, but I do understand its implications. And while I agree we must have a discussion about these issues, we must tread lightly and be careful not to make judgments of our own with the limited information presented to us. As publishers, we have the responsibility not to turn this into a trial by media, or perhaps in this case, trial by social media.

As an outsourced community manager dealing with multiple company accounts on a daily basis, understanding the details of this case is especially important. After having read the articles written about the case, I’ve formed initial impressions, which I’d like to present here for the purpose of addressing Kravitz’s call to action.

Here are the big social media issues raised by this case:

1. The commercial value of Twitter followers

First, no matter which side comes out on top, this case has encouraged businesses to raise questions and start discussions around the commercial value of Twitter followers acquired in a business context. While we are only in the preliminary – even hypothetical – stages of developing what should become a scientific method for determining social media ROI, this case has certainly worked to solidify some of these ideas in the minds of business executives.

Unfortunately, preliminary comments from experts on this matter haven’t helped clear the path towards establishing any monetary value for social media communities or individual participants. Of course, this is a muddy area and, in my opinion, valuating followers would have to be done on a case-by-case basis; $2.50 can’t possibly be the value of every Twitter follower.

Patent and intellectual property attorney Steve O’Donnell also doubted this amount, reports The Washington Post. “On Twitter, if you hang out long enough, you’ll get hundreds of followers from people who are just gathering accounts and broadcasting their own content – people who aren’t necessarily paying attention to anything Phonedog has to say,” he says. “Twitter followers can come and go … It’s very transient. It’s going to be hard for them to put a dollar number on something that’s so ethereal.”

A perhaps unexpected twist is that Phonedog’s attempt to put a value on Twitter followers could backfire. “No one particularly cares to hear that they’re worth $2.50, even if that is well above the going rate,” says Mashable.

2. Social media communities as intellectual property

IP expert David French weighed in on this subject to shed light on some big issues these two parties might face in court. Again, to uphold journalistic (and blogger) integrity, “might” does not imply “will.” These points are based on information currently understood to be true and French has offered a preliminary analysis based on this relatively limited information. The intention is to bring to attention the possibilities to highlight further important issues that could rise in this case.

It’s about ownership of the tools, not people

French says the issue here shouldn’t be described as “ownership” of a particular community of people. “What is at issue here is control over the tools for accessing such a community,” he says.

“Interestingly, English-based law clearly recognizes that a person who is a nominal owner may be declared to hold a property for the benefit of someone else, i.e. ‘in trust.’ Accordingly, merely being the registered owner of a Twitter account is not conclusive. The courts have long had a policy of getting to the root as to who is the true owner of property. Once that is established, nominal ownership can be transferred pursuant to a court order.”

If Kravitz’s email address registered to the Twitter account was associated with Phonedog, this could be evidence that he was holding the right to operate the Twitter account in trust of Phonedog. The fact that Phonedog was also included in the handle may also be evidence.

“At a minimum, I could see the employer at least having a right of access to all the information that has been or could be funneled through the account,” says French. “At the higher end, the employer might wish to acquire the ownership over the disputed accounts in order that the employer could operate the accounts independently of the departing employee.”

Of course, since social media postings are usually personal, the expectations of its subscribers might be such that they would be disappointed if a new individual assumed the role of the posting authority. Handover must be managed delicately.

Trade secrets and confidentiality

“If there has been a misappropriation of employer ‘trade secrets,’ then there are definitely precedents and remedies for the employer to pursue,” says French. “However, the employer will have to establish the existence of trade secrets. This is generally quite onerous. Trade secrets normally refer to specific types of information, which are both designated and treated as confidential within the organization with some rigour. This doesn’t happen very often.”

On Guardian, Jessica Godell of Partridge, a Chicago law firm specializing in intellectual property, said Phonedog needed to establish that the list of Twitter followers constituted a trade secret. To this, Godell asks, “Can a public account, with a ‘followers’ list compiled of public Twitter members actually be considered confidential?”

Henry J. Cittone, a lawyer in New York who litigates intellectual property disputes noted on The New York Times an added complexity that “Phonedog contends Mr. Kravitz was just a contractor in the related partnership/employment case, thus weakening their trade secrets case, unless they can show he was contracted to create the feed.”

The key question

French says the key question is: “’What were the mutual expectations of the two parties as to the status of these accounts and were these expectations part of the terms of employment?’ If definite understandings can be shown to have been in place, then the problem is that the parties may not have applied their minds to this issue. Once a practice develops in the industry, the court will presume that the practice applies unless the contrary is shown. But we may be at the stage where no such practice has yet been evolved.

“In these circumstances, the court will be burdened with establishing new law. This may mean declaring that a prima-facie presumption exists unless there is evidence to the contrary. Such a presumption, if responsibly adopted by the courts, should be as close as possible to what people would think would be a reasonable arrangement.”

French adds that, in establishing such a presumption, depending on the facts of the case, the court would have to take into consideration:

1. The legitimate expectations of the employee
2. The legitimate expectations of the employer
3. The legitimate expectations of the public

3. The blurring pixels between personal and professional social media engagement

As Kravitz says, “The pixel-drawn lines between what’s “personal” and “professional” have been blurred so quickly that it’s falling upon cases like this one to literally make the rules regarding the rights of employees, work-for-hire contractors, and corporations, let alone journalists and public figures, when it comes to the names and contents of our social media accounts.” I couldn’t agree more. It’s vitally important that clear-cut lines are drawn at the outset of employment and a social media policy is established to erase any uncertainty.

4. A new layer of influence

Social media influencers today can be akin to celebrities. If you hire one to increase your company’s online influence you assume the risk that he or she could leave. Fortunately for the influencer, he or she can establish authority throughout a career and attract communities wherever they go; there isn’t much a former employer can do to stop this. Again, this is why contracts and social media policies are vital.

“Not to blow my own horn, but I was Phonedog Noah for many years,” said Kravitz on Mashable. “People would recognize me (from the popular YouTube videos that Kravitz filmed for the site) and call me Phonedog.”

5. The imperativeness of establishing a social media policy that addresses account ‘ownership’

The culmination of this (incredibly long) blog post is that it is imperative that companies establish a social media policy which addresses account ownership. This is to protect both parties. If you’re a hotshot sales guy starting in a new company with your own contacts, then you’re an idiot not to have a contract that says the contacts belong to you and not the company. It’s the same story for influencers in social media.

This being said, while a general policy can go a long way in preventing these kinds of costly cases from arising, individual contracts must be meticulously written. While Kravitz says Phonedog wasn’t “equipped to have a policy on this stuff,” in the early days, Phonedog president Tom Klein stated on Mashable that the site “had a social media policy in place from the start” and that management “permitted and directed Noah to establish the account using the Phonedog_Noah naming convention,” to add a personal touch to the business account. But if merely having a policy fails, having a contract would have prevailed.

What do you think are the implications of this case for social media workers? Let’s have a discussion.

David French is available to lead a discussion group in Ottawa, a Quality Patenting Forum where people can discuss Intellectual Property issues relating to business startups. If you are interested in participating, please e-mail David.French@secondcounsel.com.

Technorati Tags: social media, social media law, social media ownership, Noah Kravitz, Phonedog.com, Phonedog, Twitter, intellectual property, trade secret, social media confidentiality, social media influence