December 27, 2011

Lawsuit to watch: Who owns journalists’ social media accounts?

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In the past couple of years, many news organizations have introduced social media policies covering both branded accounts and the personal social media activities of news staff.

A lawsuit currently unfolding in California might add fuel to this particular fire in 2012…

By Amy Gahran

Last weekend the New York Times reported that the mobile tech news/reviews site Phonedog is suing Noah Kravitz, a former contributor. Here’s a quick recap of that story, from CNET:

“For four years, writer Noah Kravitz produced reviews and video blogs for the mobile-phone site phonedog.com. During the same period, he also posted on Twitter under the handle @PhoneDog_Noah, eventually gathering 17,000 followers. When Kravitz left PhoneDog in October 2010, he changed his Twitter handle to @noahkravitz and continued using the account—with PhoneDog’s blessing, he asserts. (More than a year later, @noahkravitzhas 22,158 followers.)

“PhoneDog, however, apparently had second thoughts. Eight months after Kravitz left (‘on good terms,’ he told the NYT), PhoneDog sued him, claiming that Kravitz’s Twitter followers represented a customer list, that Kravitz had failed to relinquish the Twitter account when asked, and that he had therefore misappropriated trade secrets and interfered with PhoneDog’s business to the tune of $340,000—$2.50 per follower per month.”

IP attorney Scott Plamondon noted in a recent blog post that a motion for dismissal of the case filed by Kravitz’s attorneys was denied by a judge. So this case is moving forward.

A key point in this case is that Phonedog is trying to assign a monetary value to a Twitter follower of an account created and run by an employee or contractor. Regardless of how it gets calculated, when specific dollar amounts start getting tossed around, lawyers get serious and more court cases arise.

Increasingly, news organizations are specifying social media policies which attempt to govern and control not just accounts created and branded by the news organization, but any social or digital media presence that a reporter or other editorial employee may have. These range from the explicitly nonexistent (Journal Register Co.) to the one-pager (NPR) to the onerous and presumptive (Washington Post, NBC News).

IP attorney Henry J. Cittone told the NY Times:

“‘This case will establish precedent in the online world, as it relates to ownership of social media accounts,’ he said. ‘We’ve actually been waiting to see such a case as many of our clients are concerned about the ownership of social media accounts vis-a-vis their branding.’

“Mr. Cittone added that a particularly important wrinkle is what value the court might set on the worth of one Twitter follower to a media company, saying the price set could affect future cases involving ownership of social media.

“‘It all hinges on why the account was opened,’ he said. ‘If it was to communicate with PhoneDog’s customers or build up new customers or prospects, then the account was opened on behalf of PhoneDog, not Mr. Kravitz. An added complexity is that PhoneDog contends Mr. Kravitz was just a contractor in the related partnership/employment case, thus weakening their trade secrets case, unless they can show he was contracted to create the feed.”

Social media is fundamentally about people—who they are, and how they connect. Of course, social media can also be used by any business or brand for commercial purposes. But most people in the news business prefer to view journalism as a different, more mission-driven kind of enterprise.

At least in the U.S., journalism is inextricably rooted in free speech. However the traditional news industry gauges its value and power primarily by reach, and control over that reach—especially which stories and messages do or don’t get transmitted.

Meanwhile, there continues to be fewer staff jobs or other decently paid steady gigs for journalists.

So for many journalists, establishing their own social media presence, blog, or other digital media presence is an important professional asset that is tied to their individual identity. It’s as much a part of the professional value they bring to the table as their education and experience.

As the media job landscape gets even shakier, this asset becomes more valuable to the journalist. But if this value is inextricably tied to the individual journalist, it’s probably not easily transferable to the news organization if the journalist and the news org part ways.

Which means that metrics like a calculated value-per-follower might be meaningless in the real world, since the news org might never be able to realize this purported value from the social media account, absent sustained effort by that particular journalist.

All of these factors combine to make journalists’ social media accounts a looming battleground for 2012. Depending on how the Kravitz case goes, in 2012 news organizations, other companies, and lawyers may have a powerful new weapon to claim ownership over a journalist’s social and digital media presences.

So far most of the discussion about the Kravitz case concerns intellectual property, trade secrets, branding, and the value of customers. But there are larger ethical issues at stake: free speech, and whether news organizations can or should control all public expression by journalists.

Noah Kravitz mostly reviews technology and gadgets. But what happens in this case could influence what happens to the social media accounts of journalists engaged in investigative or other types of in-depth reporting.

It’ll be interesting to see whether these issues arise in how this case gets decided (or settled).

UPDATE DEC. 28: Today Kravitz and others appeared on the Bay Area public radio call-in show KQED Forum to discuss this lawsuit and its implications. KDMC’s Amy Gahran (the author of this post) called in to raise the free speech issues for journalists and others. Listen to audio.

The News Leadership 3.0 blog is made possible by a grant to USC Annenberg from the John S. and James L. Knight Foundation.

The Knight Digital Media Center at USC is a partnership with the Annenberg School for Communication & Journalism. The Center is funded by a grant from the John S. and James L. Knight Foundation.

By Amy Gahran, 12/27/11 at 4:55 pm