When an employee separates from a business — voluntarily or involuntarily — one of the thornier problems crops up if the employee exits with a Twitter handle or social media account. Speed is of the essence in retrieving and regaining control over such accounts. Any employee who has control over a Twitter handle or a social medial account be required to sign an employment agreement or employee handbook addressing company social media policies.

One oft-overlooked clause that is necessary in such agreements is what is called a “claim and delivery” clause. In other jurisdictions, “claim and delivery” clauses are called “replevin” clauses. Claim and delivery is a legal cause of action with respect to property in which a person or business can file a lawsuit and ask the court to give immediate possession of the property. Claim and delivery does not apply to real property or to things attached to real property. Claim and recovery actions are governed by the California Code of Civil Procedure, §667. Common examples of property subject to a claim and delivery case would be a wedding ring or a vehicle. For example, if your business has provided an employee with a “company car,” and, for some reason, the employee thinks the car now belong to him/her, after the employee has been fired and refuses to return the vehicle, your business can file a claim and delivery action asking that the Sheriff seize the car and return it to your possession.

Claim and delivery claims apply to intangible property too as long as there is something physical that a court can order to be delivered — such as the username and passcodes for a social media or Twitter account. Adding a claim and delivery clause to your employment contracts will help if the issue is litigated. A typical clause might read something like this:

“Claim & Delivery (Replevin). EMPLOYEE understands and agrees that all social media accounts are owned by the COMPANY. At the time of separation, EMPLOYEE shall tender all passwords, passcodes and all other information providing control of such accounts. As a matter of right, COMPANY shall be entitled to orders of claim and delivery (replevin).”

That a lawsuit for replevin can be used to regain possession of a Twitter account was the holding of a recent federal case out of Missouri. See Farm Journal, Inc. v. Johnson, Case No. 4:19-cv-00095-SRB (US Dist. W.D. Missouri, April 24, 2019). In that case, an employee, Gregory Johnson, had use and possession of a Twitter account that was used for a part of his employment. Johnson worked for an agriculture media company that published information and articles related to farming and agriculture. The Twitter account was used by the company to direct online traffic to the company website. Johnson was responsible for updating and posting to the account.

At one point, Johnson was lured away by a competing business. As he was leaving his job to go to work for another business, he renamed the Twitter account so that “his” followers would be redirected to his new employer’s website. His former employer sued and, among other causes of action, asked for a Writ of Replevin asking to court to return the Twitter account to the company. The court agreed that replevin was a proper cause of action and may be used to gain possession of social media accounts.

Contact San Diego Corporate Law Today

If you would like more information about protecting your social media accounts, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters and he proudly provides legal services to business owners in San Diego and the surrounding communities. Like us on Facebook.

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