“The costs and resources invested by ON A WING AND A PRAYER PRODUCT GROUP into growing its followers, fans and general brand awareness through social media are substantial and are considered property of  the Company.  We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands. That’s why we are suing you for misappropriation of our customer list and other trade secrets (aka your Twitter followers). Please pay us $2.50 per follower per month of your unauthorized use.”

The first case to address whether a Twitter account is a corporate asset and how to value the account has been filed in federal court. Initial hearings are later this month.

It’s an important case because as more and more employees post material on Facebook, LinkedIn and Twitter—often on behalf of their companies — the social media account becomes increasingly more valuable to both employer and employee.  The company gets an online voice and brand, and the employee makes often significant personal connections that can impact his career.

In Phonedog v. Kravitz, an employee voluntarily quit a technology review company.  At separation, he was permitted to keep his Twitter account with 17,000 followers, but was asked to occasionally tweet about the company and continue to provide content for blogs and reviews.  At some point he changed his Twitter name to delete the name of the company. The relationship later soured, with the employee filing suit for unpaid benefits and compensation, and the company  contending that the former employee misappropriated the company’s Twitter account and followers, and cost the company thousands of dollars in lost advertising and sales.

Without delving into the details of this particular case, here are some reasons a Twitter account could legitimately belong to an employer:

• The account uses the company’s brand name.
• The account was created specifically to communicate with the company’s customers.
• The account was created to attract new customers.
• There is an applicable non-competition or confidentiality agreement.
• What does the corporate social media policy say?

Reasons the account could legitimately belong to the employee:

• The account name does not include the employer’s brand name.
• Tweets were not exclusively about the company (some about the Tweeter’s life and thoughts, some about the company and its products).
• Followers connect because of the personal relationship with the Tweeter, not because of the brand name of his company.
• Twitter followers (and LinkedIn connections) are not secret, so this is not theft of a trade secret.
• The employee is actually an independent contractor.
• What does the social media policy say?

If you are not hearing my subtext, a social media policy is more crucial than ever.  But there are significant hidden issues in the areas of labor and employment law, intellectual property protection and public relations/disaster recovery.  This is a good time to spend money on an attorney.

Stay tuned for more insight into social media policy.

Related articles

• Who Owns Your Social Media Account? Your Company or You? (intelligentdesignsmedia.com)
• Who owns a Twitter username? How to avoid a Twitter account lawsuit (theredrocket.co.uk)

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I’ve been involved in Twitter discussion about the word “Mompreneur” based on this article at Forbes.com.  The article posits that women-led businesses have a tough time getting capitalized, especially if their products or services target women or families. @85Broads widened the discussion to whether there is a stigma to “mompreneur“.

As a woman professional, I have watched the “mompreneur” debate from the sidelines for a few years now, along with the related “mommy blogger” debate.

I am a professional.  I am also a mom.  I take both of these roles seriously, and sometimes they overlap. One Saturday, I held a deal together by Blackberry from the Museum of Life and Science.  I have a magnetic Thomas the Tank Engine set in my briefcase for those days where my kid has to come search titles.

I choose not to label myself a mompreneur or a mommy blogger.  Other women in my position embrace these labels.   When a woman self-labels herself a “mompreneur” or “mommy blogger”  (or when we women call each other “broad” or “bitch” or even “honey”), it is empowering because it is a choice and a self-identification.

But when male venture capitalists, investors, backers and bankers  use any of these terms, it is usually to denigrate, belittle or devalue  the women’s business.  It’s often the new shorthand for “Honey, I can’t give you a loan.  You should stay home and take care of your husband, who really deserves access to my capital because he has a family to support.” It’s shorthand for “This is just a hobby.”

Do you think there is  a stigma to being called a mompreneur or mommy blogger?

A Suffolk County, New York trial judge recently ruled that the private areas of a plaintiff’s Facebook and MySpace profiles could be discovered by the defendants in her personal injury suit to prove she wasn’t injured as badly as she claimed.

In Romano v. Steelcase , Kathleen Romano fell off a desk chair at the college where she was employed. She sued the manufacturer and distributor for making a defective product, claiming permanent neck and back injuries that largely confined her to home or bed, and reduced her quality of life. Yet, the public pages of her Facebook and MySpace pages showed her happily traveling to Florida and Pennsylvania during times she claimed she was incapacitated.

The defendant then requested consent from Ms. Romano to access the private sections of her social networking sites to disprove the extent of her injuries. She refused, and the defendant filed a motion to show cause why this information should not be turned over.

Ms. Romano’s attorneys argued that she had a reasonable expectation of privacy in her home computer and that the request was merely intended to intimidate and harass her.

Facebook also opposed the request, saying that if it provided a subscriber’s account information without consent, it would be violating the federal Stored Communications Act. This Act prohibits a social networking site from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena,” Facebook argued in court papers.

The judge found that this discovery request was reasonably related to plaintiff’s own claim of injuries (i.e., she put her physical condition at issue in the court case), and that she had no expectation of privacy:

Indeed, as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy. In this regard, MySpace warns users not to forget that their profiles and MySpace forums are public spaces, and Facebook’s privacy policy set forth, inter alia, that:

You post User Content . . . on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable.

Further that:

When you use Facebook, certain information you post or share with third parties (e.g., a friend or someone in your network), such as personal information, comments, messages, photos, videos . . . may be shared with others in accordance with the privacy settings you select. All such sharing of information is done at your own risk. Please keep in mind that if you disclose personal information in you profile or when posting comments, messages, photos, videos, Marketplace listing or other items, this information may become publicly available.

Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

Further, Defendant’s need for access to the information outweighs any privacy concerns that may be voiced by Plaintiff. Defendant has attempted to obtain the sought after information via other means e.g., via deposition and notice for discovery, however, these have proven to be inadequate since counsel has thwarted Defendant’s attempt to question Plaintiff in this regard or to obtain authorizations from Plaintiff for the release of this information. The materials including photographs contained on these sites may be relevant to the issue of damages and may disprove Plaintiff’s claims. Without access to these sites, Defendant will be at a distinct disadvantage in defending this action.

In another recent decision, McMillen v. Hummingbird Speedway, Inc., a Pennsylvania judge ordered another personal injury plaintiff who was alleging significant impairment to disclose his social media user names and passwords. As in the Romano case, the public portions of this plaintiff’s social networking sites revealed activities that contradicted the plaintiff’s claimed injuries. The defendants were then allowed access to the private areas of the plaintiff’s accounts and the plaintiff was ordered not to delete or change content.

But there can be consequences to public griping, and not just griping via social media. The latest social media tempest is CNN Mideast Editor Octavia Nasr, who tweeted that Grand Ayatollah Mohammed Hussein Fadlallah was “one of Hezbollah’s giants I respect a lot.” She was fired for compromising her objectivity.

A waitress in Charlotte was fired after venting on Facebook about customers who lingered for hours and then gave a paltry trip. She named the restaurant in her post.

But General Stanley A. McChrystal was also fired. He gave an interview to Rolling Stone, a print magazine founded in 1967, in which he criticized his commander-in-chief and the administration’s Afghanistan policy.

I have written previously about ill-considered tweets and status updates. It is easy to get in trouble online. But as the General McChrystal affair shows, any public comment about your employer can get you in hot water.

The lesson from all of this is that the only freedom of speech granted in the US Constitution is the freedom from the government censoring your political speech. Commercial speech has less protection than political speech, and employers in North Carolina and other at-will employment states have broad rights to fire you for giving your opinion.

They also have the right to sue you for defamation if your comments aren’t true.

This issue gets people hot under the collar. As employment attorneys, we would advise our clients to have current social media policies and follow them to the letter in every case.

7:03 p.m. At #NNPJ. Nice atmosphere. Friendly staff.
7:13 p.m. At #NNPJ. Does anybody want to take my order?
7:17 p.m. At #NNPJ. Anyone? Anyone?
7:35 p.m. At #NNPJ. Grrr… strawberry margarita instead of rocks
7:45 p.m. At #NNPJ. Salads here. Hardly worth the wait.
7:52 p.m. At #NNPJ. H8 it when entrée arrives b4 salad finished.
7:53p.m. At #NNPJ. Crust soggy
7:53p.m. TwitPic of rubbery, congealed cheese.
8:03 p.m. At #NNPJ. Where’s the check?
8:19 p.m. At #NNPJ. Anyone? Anyone?

You create a Facebook Page: 1,000 Durhamites Against NNPJ. Four hundred people join in the next two weeks, and post their own bad experiences.

Then you are served with a defamation lawsuit claiming your online postings have hurt business and demanding $50,000 in damages, plus attorneys fees.

What ever happened to freedom of speech? You have been SLAPPed.

In many cases, online comments are protected opinions or true statements (and as such are not defamatory), but the subject of such criticism files meritless or frivolous lawsuits to try to punish the speaker and get the content taken down. These are known as Strategic Lawsuits Against Public Participation or SLAPP suits. About half the states have anti-SLAPP statutes, which allow a defendant to file a motion and stop the lawsuit until the plaintiff justifies the suit. North Carolina does not.

SLAPP suits were often used by government officials or businesses against people who wrote critical letters, gave testimony at public hearings or otherwise spoke up. With social media, however, comments that might have been made to a few people at the local watering hole are now public and permanent. Businesses have more incentive than ever to remove negative reviews or opinions, and some are using SLAPP suits to shut down online critics.

Congress is considering legislation to make it harder to file such a suit. A Federal anti-SLAPP bill, modeled after the California anti-SLAPP statute, has been proposed by two Democrateic congressmen, Steve Cohen of Tennessee and Charlie Gonzalez of Texas.

Under the proposed law, a defendant who believes he is the subject of a SLAPP suit can petition to have the case dismissed and have the plaintiff pay his/her legal fees.

For more articles about defamation, click here.

Horizon Realty apparently filed suit for business defamation without any warning or communication with the tenant. In Illinois, like North Carolina the basic elements of defamation are publication of a false statement that harmed the plaintiff’s reputation. Libel is a written false statement and slander is a verbal false statement.. They are known as defamation generally.

Typically, to bring a civil suit like this, the suing party (plaintiff) must show actual damages, either monetary or intangible. But when someone’s trade or profession is allegedly defamed, that person is presumed to be harmed without having to show damages. This is called libel or defamation per se.

The truth of the statement is an absolute defense to the claim of defamation.

Although Twitter is a public forum with millions of users and the potential for more than 20 people to see the post, probably only a handful of people saw it and my guess is most just discounted it as the exaggeration of their friend.

Until Horizon filed suit, and its owner was quoted as saying “We’re a sue first, ask questions later company.” Now, it’s a trending topic on Twitter and millions of people are talking about it (be sure to check out the comments for insight into how savvy social media folks view this situation). Now, Horizon appears to becoming an online joke.

[Since I first published, Horizon has released additional information.]

But what exactly is the nature of Twitter? Is it “publishing” to “tweet” (post on Twitter) or is it more of a chat between friends that happens to be overheard?

The informal and short (140 character) nature of posting on Twitter leads many people to think of it as an informal conversation between friends. But the truth is that Twitter is a public forum, and what you say can be the basis for a defamation suit. It can also be the basis for adverse employment actions or unintentionally insulting clients.

My best advice on social media generally: Don’t say anything you wouldn’t want both your mom and your boss to see.

What do you think about use of Twitter generally and this incident specifically?

What’s so scary? Many executives fear posting something personal (on Facebook) that might prove damaging. It needn’t be a lampshade on the head, either. Perhaps it’s vacation photos from a second home that looks too opulent at a time when employees are losing jobs. Or maybe their support for a controversial ballot proposition proves a bit too vocal. . .

Obviously it’s never a good idea to post “personally identifiable information” that can lure identity thieves and other malefactors. And only a very careless or foolish person would publish proprietary company information onto a social media site. But what about all the stuff in the grey area–the pictures of you barbecuing at home, gin and tonic in hand? The tweet about the movie you just enjoyed? The link to that Atlantic article recommending an overhaul of the banking industry?

Similarly, companies are debating who should “people” the corporate Twitter account, marketing, executives, CSRs, tech help, etc..

Twitter, the microblogging service, which limits posts to 140 characters, has become a favourite of celebrities and digerati. Businesses worried about being left behind are experimenting with using the service to promote themselves. Done badly, the effect can be like watching your grandfather dance at a wedding disco. So should it be left to a company’s marketing department to tweet?

Everyone has a different comfort level about what information to post. It is clearly a good idea to be cautious, as I’ve blogged previously. But when we use social media as a relationship-building tool, to do so effectively means we need to put ourselves out there by more than providing the product/service “name, rank and serial number” (and by that I mean, posting more content than mere brand puffery, PR and cliche).

Personally, I use this blog , LinkedIn and Twitter most often for business purposes. On the blog, I try to post legal updates, commentary on legal issues and commentary on issues relevant to small businesses and their owners (like this one). Each post is an initial remark that is intended to spark an ongoing conversation.

I connect with new business acquaintances and referral sources on LinkedIn. Although many people find LinkedIn impersonal and cumbersome, to me it is only the first step in business-relationship building. I am as active as I can be in groups that match various professional interests, and dialog with people through discussions that often start on the web and continue offline. As we get to know each other, we develop an actual relationship, outside of LinkedIn.

I use Twitter to promote the blog and develop relationships with referral sources and potential clients. I try to keep my Twitter posts relatively business-like and have decided not to post about the whether, what I am eating (unless I am talking about a new restaurant/business in the area) or what my dogs/kids/spouse are up to. I realize everyone has a personal philosophy about these types of post, and “small talk” tweets often lead to strong relationships. Again, for me, public tweets are like meeting someone at a Chamber meeting — if I want to know more, we meet for coffee later in the week for a more substantive and personal interaction.

I have made a deliberate decision to limit Facebook to keeping in touch with actual social friends and family, and not to use it as a business development tool. Nonetheless, I never post anything on Facebook that I wouldn’t want both my mother and our firm’s Board of Directors to see.

I’m interested in how other people use these tools. Where are your boundaries?

In it, an employee put cheese up his nose, and farted and sneezed on sandwich fixings he was handling, while the narrator described how those sandwiches were on their way to customers. He also wiped his butt with a sponge and used it to wash dishes.

The video went viral and generated a public relations nightmare for both the Domino’s franchise and the local franchisee (owner). The employees were charged this morning with felony food tampering, although they have said that none of the tainted food was ever served.

There is a lot here to talk about from the business attorney’s perspective, which I will address in a series of blogs:

1. The Power of Social Media
2. Corporate Damage Control
3. Negligent Hiring
4. Franchising

These employees were goofing around. But imagine what a couple employees with a grudge and a video camera could do to your business.

The videos were posted Monday, and by Wedneday about a million people had seen them. It was spread through services like Twitter, Digg, and StumbleUpon. Readers of a popular consumer protection site that blogged about the video, identified the particular franchise by brief footage shot through the drive-through window, and notified the Domino’s CEO.

Twitter is a service where people “micro-blog” or send 140-word updates (“tweets’) on their activities, interests, opinions, blogs, etc. Numerous people commented on how gross the video was and “tweeted” to their friends, who presumably then also watched the video and “tweeted” to their friends.

Digg is a site where people submit news, videos, photos or other online content for other users to vote on (i.e., they “digg” it). More than 6200 people “dugg” the Domino’s video, which would translate into tens of thousands of people being directed to the video just from Digg alone.

StumbleUpon another social bookmarking site, similarly directs traffic to content, and many thousands more likely found the video that way. I’m sure numerous other people shared this video with their friends on Facebook and MySpace.

Domino’s opened its Twitter account yesterday, but many other companies have successfully used social media to their advantage to respond to customer complaints, launch new products or generate buzz.

I am not an expert on social media, but I would advise my clients to include social media in their overall marketing program. These social media outlets have become very powerful and mainstream. For some social marketing experts take on responding to social media attacks, click here and here.

Another example of how social media can affect local businesses is Yelp. Readers post reviews of restaurants, stores, hotels, mechanics, etc. Until recently, there was no way for a local business to respond to these reviews, but Yelp recently changed its policy to allow business owners to correct incorrect facts. For example, if someone writes a scathing review of your snail souffle, you can post that you don’t serve snail souffle. You would not, however, be able to challenge the opinions that the vegetables were mushy, the service slow or the atmosphere run-down.

The larger point is to be aware of what your customers are saying. Word of mouth marketing is very powerful. And with social media, word of mouth is no longer local.

“Nothing is local anymore,” Domino’s spokesman Tim McIntyre says (in USA Today). “That’s the challenge of the Web world. Any two idiots with a video camera and a dumb idea can damage the reputation of a 50-year-old brand.”

The first search turned up a MySpace page. There was a picture of the applicant, drinking beer from a funnel. Under hobbies, the first entry was, “binge drinking.”

The second search turned up a personal blog (a good one, actually). The most recent entry said something like, “I am applying for some menial jobs that are below me, and I’m annoyed by it. I’ll certainly quit the minute I sell a few paintings.”

And the third? There were only six matches, and the sixth was from the local police department, indicating that the applicant had been arrested for shoplifting two years earlier.

Liz Strauss, a social networking marketing expert, mused on the potential dangers of out-of-context Twitter comments. Martin Zwilling of Start-up Professionals explored the wild-west atmosphere of such social networking sites as Facebook, Twitter and MySpace.

We have subjected ourselves to a staggering loss of anonymity, and many of us may not truly understand how we appear online. Parents routinely search babysitters, nannies and teachers. Employers and college admissions officers search applicant profiles. And that doesn’t even account for other social media risks: trademark and copyright violations, defamation, invasion of privacy, and wrongful discrimination claims from employees fired for information they disclosed in social media.

I am active on several online communities, including Twitter and LinkedIn. And before I post anything, I take an extra second to consider whether I would want that comment on the front page of the New York Times, or what my boss or mother would think. Others sometimes forget that their off-hand comments can have significant repercussions.

As a business lawyer, I strongly urge every company to think about how it wants to use social media (Twitter, MySpace, Facebook, LinkedIn) as a business tool and to draft a very specific corporate policy outlining how employees should use corporate email, internet, and social media. Or your company may be trying to put the Tweet back in the bottle.