Canada: Who Owns An Employee’s Social Media Account?"

Originally published at www.irvinschein.com.

In a late 2011 action called PhoneDog v Kravitz, a mobile device news website sued a former employee, Mr. Kravitz, in U.S. District Court in California.

Kravitz had left the company with a Twitter account, including 17,000 followers, that he had developed and cultivated for PhoneDog during his employment. PhoneDog asked Kravitz to turn over the password and he refused to do so.

PhoneDog took the position that the Twitter account and its password involved a trade secret and that the failure of Kravitz to hand these over constituted a misappropriation of a trade secret. In this case, the alleged trade secret consisted of what was essentially a customer list in the form of the 17,000 account followers.

PhoneDog took the position that by maintaining the Twitter accounts, Kravitz was using confidential information to disrupt PhoneDog's relationship with its customers.

Presumably at the bottom of PhoneDog's complaint was the fact that after resigning from PhoneDog, Kravitz began working for one of PhoneDog's competitors and used his Twitter account on behalf of the new employer.

For his part, Kravitz took the position that the account was his and there was simply no economic relationship between PhoneDog and any of the account's followers. As a result, his use of the Twitter account did not disrupt any ongoing business.

Kravitz brought a motion to dismiss the action on the basis that it could not possibly succeed. The Court disagreed with Kravitz, holding that the accounts and their passwords could indeed constitute trade secrets and therefore a trial would be necessary to decide the point.

After litigating for about a year, the parties settled. Details of the settlement have been maintained in confidence but Kravitz does continue to use the Twitter user name that he created for the account after leaving PhoneDog's employ. As a result, the final answer to this interesting question will have to await some other case at some other time.

In the meantime, however, this case serves as a useful reminder to prospective employers and employees to at least consider the ownership of social media accounts when entering into an employment relationship.

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