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A news publisher’s bid to wrest control of a Twitter account from a former reporter may clarify whether social media accounts can be legally protected trade secrets.
BH Media Group Inc., owner of the Roanoke Times, has sued former employee Andy Bitter in federal court. BH Media says Bitter refused to give up the Twitter handle @AndyBitterVT, which has more than 27,000 followers, after moving to a competitor. The publisher is arguing that the account is a trade secret.
A court decision could help companies trying to make a case that social media accounts deserve trade secret protection, attorneys told Bloomberg Law.
A decision could “help employers see what arguments courts believe are more persuasive than others and provide more guidance on protecting these accounts as trade secrets,” Michael J. Passarella, an employment lawyer at Olshan Frome Wolosky LLP, said.
Bitter’s predecessor created the account in 2010 for the company, then BH Media gave it to Bitter, the company alleged. He changed the account’s username and password while he worked for the Times, BH Media alleged, and he now uses it to promote his current employer, a sports news website called the Athletic. BH Media argued Bitter was bound by an employee handbook that said it owns company-provided social media accounts.
The account is a trade secret because it provides a “unique Twitter Feed” that only those with access rights can see and allows private message sharing with its followers, BH Media alleged. The company sued under federal and state trade secret laws in a complaint filed in the U.S. District Court for the Western District of Virginia.
Williams Mullen Center, counsel for BH Media, and Bitter declined Bloomberg Law requests for comment.
There is little case law covering whether social media accounts can qualify as trade secrets, Bloomberg Law data show, but several courts have been open to the idea.
Courts are recognizing the value of social media contact lists and the ability to interact with them, Eric Barton, a trade secrets and social media attorney at Seyfarth Shaw LLP in Atlanta, told Bloomberg Law. A list of Twitter followers may be public, but only the account holder can communicate with those followers, he said.
In PhoneDog LLC v. Kravitz, the U.S. District Court for the Northern District of California declined to dismiss a trade secrets claim stemming from a former employee’s control of a Twitter account used to promote a company’s mobile phone news site. The court said the issue of whether the account’s followers were trade secrets required a factual inquiry.
The U.S. District Court for the Northern District of Illinois, in CDM Media USA Inc. v. Simms, allowed a media company’s trade secrets claim to proceed against a former employee who allegedly refused to give back control of its LinkedIn group. The court said the plaintiff plausibly alleged that the group’s membership list was a “valuable secret commodity.”
The Illinois court, however, rejected the plaintiff’s claim that the group’s private messages were trade secrets because the plaintiff failed to point to specific messages and describe how they fit the definition.
Both cases settled before the courts could rule on the question of whether social media accounts qualify as trade secrets.
Under a 2016 federal law, a trade secret is information that its owner has taken reasonable measures to keep secret and derives economic value from not being generally known to competitors.
Trade secret claims generally require courts to consider all the facts of the case. Courts will look to the nature of the information, the measures taken to protect it, the people who have access to it, and whether those people have agreed to keep it secret, Jay Bogan, a trade secrets attorney at Kilpatrick Townsend & Stockton LLP in Atlanta, told Bloomberg Law.
Certain information in a social media account could be commercially valuable to a media outlet. But whether that information is entitled to trade secret protection depends on the circumstances, Bogan said.
A list of Twitter followers developed through work for a business could be protected, Passarella said. “If the value in a social media account is in the customers and who you are able to communicate with, it certainly can be a trade secret,” he said.
A media company could have a valid claim that it derives revenue from information about thousands of followers of a Twitter account, Aaron B. Swerdlow, an emerging technology attorney at Glaser Weil Fink Howard Avchen & Shapiro LLP in Century City, Calif., said. A less convincing claim, Swerdlow said, would be that private messages exchanged through an account are driving revenue.
Bogan said that private messages could possibly be trade secrets if they’re sent through a confidential platform that’s available to a limited number of people. But “unless everyone within that universe is bound by obligations of confidentiality, then the trade secret claim doesn’t work,” he said.
The complaint against Bitter is a reminder that companies giving their employees access to company-sponsored social media accounts need to document it, John C. Kirke, a partner at Donahue Fitzgerald LLP in Oakland, Calif. who represented PhoneDog, told Bloomberg Law. He said companies should make employees sign an agreement indicating who owns the account and whether it contains confidential information.
“A well-drafted agreement can often be the silver bullet in these types of cases,” he said.
The case is BH Media Group Inc. v. Bitter, W.D. Va., No. 7:18CV388, complaint filed 8/6/18.
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