Is a Company-Associated Twitter Account a Trade Secret?

In the news recently is a fight between a local sports reporter — Andy Bitter — and his former employer, the owner of The Roanoke Times. Mr. Bitter was a sports writer for the media outlet covering sports events at Virginia Tech. He recently left to take a job with a competing news outlet called The Athletic. At issue is Mr. Bitter’s Twitter account. He has taken it with him to his new job — the competing news outlet. However, his former employer filed a lawsuit recently alleging that Mr. Bitter has engaged in trade secrets misappropriation/theft by refusing to hand over control of the Twitter account. See news report here.

The case raises an interesting set of questions and there is an interesting 2011 federal case decided here in California on this issue. To avoid legal problems, it would likely be advisable to address such questions at the time of hiring an employee. To address such questions, a businesses should have new employees sign an agreement or employee handbook containing a company policy stating:

• That company-related twitter or other social media accounts are owned by the company
• Defining a “company-owned” account as one where the company provides the password to the new employee
• That the employee will turn over passcodes and access upon separation
• That the employee will not use his or her personal social media accounts to conduct company business and
• That if the employee DOES use his or her personal account, employee agrees that such account becomes the property of the company.

Here is a quick discussion of the case against Mr. Bitter.

San Diego Corporate Law: Who Owns the Twitter Account?

As noted in the new reports, the account that Mr. Bitter used was “@AndyBitterVT”. The “VT” is short for “Virginia Tech” which is itself short for the full name of a large public university located in Blacksburg, Virginia called Virginia Polytechnic Institute and State University. Virginia Tech has successful and popular college football and basketball teams and offers a number of other sports programs. VT is part of the Atlantic Athletic Conference (“ACC”) along with other notable members of the ACC such as North Carolina, Duke, Florida State, and Notre Dame (partial member).

Note that @AndyBitterVT does not reference his employer, The Roanoke Times. Thus, at least based purely on the name of the account, it does not appear that The Roanoke Times owns the account. But, at this point, we do not have sufficient information. Ownership is dependent on many factors such as who pays for the account (if anyone — Twitter accounts are free), what information is listed on the account page, what have the parties said in public pronouncements, what agreements have been made, etc. The Roanoke Times claims ownership based on the fact that the Twitter account was created by the former reporter doing Mr. Bitter’s job and based on an employee handbook provision that stated, “social media accounts provided by [COMPANY] to employees … are the property of [COMPANY].” If these claims are true and if The Roanoke Times provided Mr. Bitter with the passcode to the account at the time of his hire, likely the Virginia court will agree with The Roanoke Times that the account is owned by it.

San Diego Corporate Law: Is a Twitter Account a Trade Secret?

Assuming that the Twitter account is owned by The Roanoke Times, the next question is whether the Twitter account — any Twitter account — is a trade secret. The short answer seems to be “yes.”

Here in California, trade secrets are governed by the California Uniform Trade Secrets Act (“UTSA”). See Cal. Civil Code §3426.1(d). In general, three elements must be shown:

• Some sort of data, information, device, method, etc.
• That “derives independent economic value … from not being generally known …”
• And is the subject of “reasonable efforts” the maintain the secrecy of said data, information, device, method, etc.

The Roanoke Times claims that the password and the userlist associated with the Twitter accounts are the “secrets” and that The Times did, in fact, make “reasonable efforts” to maintain the secrecy of said information. Likewise, The Times claims that there is commercial value to the userlist, in particular. Under caselaw decided here in California, those are sufficient allegations to support a claim of theft of trade secrets. See PHONEDOG v. Kravitz, Case No. C 11-03474 MEJ (US Dist. N. D. California, November 8, 2011) (agreeing that Twitter account information was a “trade secret” under UTSA and allowing employer’s case alleging trade secret misappropriation to proceed where former employee refused to turn over Twitter account).

Contact San Diego Corporate Law Today

If you would like more information, contact experienced business lawyer Michael Leonard, Esq. of San Diego Corporate Law. Mr. Leonard has been named a “Rising Star” by SuperLawyers.com and “Best of the Bar” by the San Diego Business Journal four years running. Contact Mr. Leonard via email or by calling (858) 483-9200.

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