No chief executive of a major corporation with high brand visibility could be expected to react well to news that an ambassador of the company, with a sizeable online fanbase, has instantly and publicly switched to a rival brand. But thanks to Twitter, that’s something that quite a few chief executives have been going through lately.
In the summer of 2011, UK news correspondent Laura Keunssberg raised managerial hackles at the BBC by changing her Twitter handle from @BBCLauraK to @ITVLauraK when she was hired by ITV. For any other Twitter user, a change of handle would be largely innocuous – but Keunssberg had some 62,000 followers at the time: a large pool of media-savvy contacts who had, until then, found their way to other parts of the BBC’s online service via links to the journalist’s reports. The BBC had also used Keunssberg’s Twitter feed as a handy means of sourcing rapid comments for online stories in her specialist field of politics. In effect, the broadcasting company saw the feed as theirs – not Keunssberg’s.
Speaking of politics, London Mayor Boris Johnson ran into trouble at City Hall earlier this year after he changed the official Mayoral feed’s handle to his own name – instantly capturing thousands of followers from what was meant to be a politically neutral facility for communicating to Londoners. He quickly changed it back and set up his own handle once it became clear that his stab at instant popularity had momentarily yielded an effect that was the precise reverse of the one he had sought.
At present, US company Phonedog Media – a price-comparison site that sizes up mobile phone costs and tariffs – is preparing for a long-awaited day in court with its former editor-in-chief Noah Kravitz, who migrated 17,000 Twitter followers from @Phonedog_Noah to plain old @noahkravitz after leaving the firm last year. In February, Phonedog quashed a bid by Kravitz to have its lawsuit against him dismissed. The company is now aggressively pursuing a damages claim calculated at $2.50 per lost follower, per month of absence.
After successfully defending its right to sue, Phonedog issued a statement that clearly equated the contested feed with its other intellectual property (IP) holdings. ‘The costs and resources invested by Phonedog Media into growing its followers, fans and general brand awareness through social media are substantial,’ it said, ‘and are considered property of Phonedog Media. We intend to aggressively protect our customer lists and confidential information, IP, trademark and brands.’
In an interview with NewLegal Review, Hayley Devlin – a solicitor in the Entertainment, Media and IP (EMIP) department of Hamlins Solicitors LLP – explained the damage that can stem from a company’s loss of a customer base or contact base, insofar as that constitutes a social media network. ‘If an employee has set up and developed a social media campaign and then changes its name after switching jobs,’ she said, ‘it will often be the case that they have gone to a direct competitor. Those were the circumstances behind the lawsuit Hays Specialist Recruitment (Holdings) Ltd and Hays Specialist Recruitment Ltd versus Mark Ions and Exclusive Human Resources Ltd, decided at the High Court of England and Wales in 2008.’
In that case, defendant Ions had set up his own recruitment agency and taken with him a large network of LinkedIn contacts built up during his time at Hays. In a summary judgment, the High Court served Ions with an e-disclosure order compelling him to give Hays all the LinkedIn emails sent from his work account during his tenure at the company – including all the messages that showed he had used contacts acquired for Hays’ benefit to form a customer base for his own enterprise.
For Devlin, the crucial question that every company with social media connections (and there are few without) must ask themselves is: what is our liability? ‘The situation that led to the Hays case is akin to taking sensitive commercial information elsewhere,’ she said, ‘and if it were likely that any former employee who did that had made a profit from one or more of those contacts, that could be identified through legal action. As LinkedIn is a tool that enables professionals to connect with other professionals, it is used a great deal by people in recruitment. In that business, you are actively encouraged to build relationships, and that is all usually done on the employer’s time. So in that sense, the employer has made an investment in those relationships.’
Courts and contracts
Devlin is clear on the potential havoc that unauthorised transfers of Twitter followers could wreak upon a trademark. ‘Loss of contacts through transfers will have negative connotations for a brand if it’s perceived in that brand’s sector that there has been a loss of business,’ she said. ‘Third-party observers may see it as a sign that the brand owner is unable to sustain a customer base or cultivate loyalty, and that could have a negative impact on any goodwill associated with the brand. It could also do a lot of harm to the parent company’s image.’
However, she stressed, there are no current IP laws that directly address the issue of unauthorised transfers. ‘The law is simply yet to catch up,’ she said, ‘which is problematic for employers and social media users alike. But it’s hard to see how the government could introduce legislation against this kind of behaviour in what has always been a dynamic environment – and it could actually be quite dangerous, with plenty of implications for the freedoms that people enjoy in their social media use.’
Devlin argued that, despite the brand-related effects of unauthorised transfers, IP laws are not the ideal forum in which to challenge them. In her view, there are existing laws against breaches of confidence that have already played vital roles in UK employment cases – and could perhaps be repurposed to fit the social media landscape. ‘What we really need,’ she said, ‘is for the courts to look at this issue and determine to what extent they would class specific networks of online contacts – or the leads they open up – as confidential information. Companies could then incorporate the relevant court decisions into their social media policies.’
Until that comes to pass, though, Devlin advised that it is up to individual companies to improvise with their own, contractual language – and to ensure that their wording is airtight. ‘Every employment contract should contain a Restrictive Covenant, which outlines what the employee is prohibited from doing under certain circumstances,’ she said. ‘Employers need to review existing contracts of employment and keep an eye on new ones to ensure that their Restrictive Covenants contain at least half a page of social media content. This should take care of questions over who owns which account, and what kind of information from the network of contacts is recoverable from the employee who manages it, in the event of their departure.’
Pads and policing
‘Employees should be encouraged to maintain personal accounts in parallel with professional ones,’ Devlin added, ‘and keep them separate as far as possible. This would prevent the employee’s own interactions from becoming confused with those of the company or brand. Any goodwill derived from professional social media contacts should be conferred upon the employer – not the employee. However, it would also be reasonable for contracts to include “carve outs”, outlining what employees can take with them when they leave, if it can be shown that they have generated certain pieces of business through contacts on their own time.’
Stipulations such as these would make the enforcement of company policies much easier. If they are not implemented, and an employee seems intent on transferring followers, then the relevant company would be forced to impose an injunction and make a damages claim – the costs of which are typically very high.
However, Devlin acknowledges, even with those clauses in place, companies must be vigilant. ‘Policing will always be an issue,’ she said. ‘You can never be sure of what employees are doing on your time, or their own – and a lot of social media activity is stimulated by personal devices such as smartphones and iPads.’