The claims are serious. Misappropriation under the Defend Trade Secrets Act and the Virginia Uniform Trade Secrets Act. Violations of the Computer Fraud and Abuse Act, the Stored Communications Act, and the Virginia Computer Crimes Act. Conversion and breach of fiduciary duty.
All because a sports reporter took his Twitter account with him when he left his newspaper.
The short version is that Andy Bitter, who covered Virginia Tech football for The Roanoke Times, resigned in July 2018 to join the sports-news website The Athletic, which has been poaching talent from local media. While at the Times, Bitter had used a Twitter account to share his stories, break news, and engage with readers. He had more than 27,000 followers when he left.
ICYMI: Fox News contacted a man on Twitter for permission to use a video he posted. It didn’t go well.
Bitter declined requests from the Times’s parent company, BH Media Group, to hand over his login information—and he has continued to use that account at The Athletic. BH Media, which says it owns the account, is suing Bitter in federal court, making the many claims listed above. The company has also filed a motion asking the court to prevent Bitter from using the account. And to make things more interesting, just over a week ago, Bitter countersued BH Media for defamation.
It’s a messy case, factually. BH Media says it owns the account because another reporter created it in 2010, “within the scope of his employment” for a partner paper, before resigning and returning the account to his employer. Bitter was hired in 2011 on the same beat, at which point he received the account’s login information. A story in the Times suggested that the paper provided it to Bitter, who disputes that and says he received it by email from the reporter who created the account—an email sent from his predecessor’s personal address to Bitter’s personal address.
That’s an especially significant fact because BH Media also claims that Bitter repeatedly signed a form, most recently in 2015, acknowledging receipt of a company handbook stating that all social-media accounts provided by BH Media are company property and must be returned upon termination of employment.
Ultimately, BH Media’s complaint alleges that the account offers unique access to tens of thousands of users who have “indicated an interest in the products of the Times,” and that it “provides invaluable insight into the interests of those individuals and entities and general trends across that curated list of followers”—and therefore the company can protect the account information under trade-secret laws.
It’s unclear how the case will turn out. The facts need finding, and there aren’t good precedents. The problem is twofold: Few cases have addressed social-media ownership in an employment context, and the most relevant ones have settled out of court. For example, in PhoneDog v. Kravitz, an employee for a tech-news site created a Twitter account to share his work. He had roughly 17,000 followers by the time he left his job. He changed his handle, removing a reference to the site’s name, but he kept the account and its followers. The site sued under trade-secret laws. The case settled out of court in 2012, and the full terms are unknown, but the ex-employee kept the account.
When Jim Roberts accepted a buyout from The New York Times in 2013, he did the same thing: He changed his handle to remove a reference to the newspaper, and he took his Twitter account with him to Reuters and then to Mashable, where he held top posts. Now he’s at Cheddar, with the same account. When he left the Gray Lady, he tweeted, “My feed is my own.”
It’s reasonable to assume that these types of issues will become more common. A report in 2015 found that journalists are among the most active Twitter users and that they make up the largest proportion of users with verified accounts. And because of growing instability in the news industry, journalists are changing jobs intermittently—sometimes even getting hired because of their social-media reach. Some use their accounts only for work purposes, and others mix in personal content. Accounts can evolve from one kind of function to the other; some are created at work, others at home.
The issues, legally, are ownership and control. They must be established as a predicate to the other potential sources of liability: misappropriation under trade-secret laws, violations of computer-security laws, conversion, etc. Resolving those issues, as Ellyn Angelotti Kamke, formerly Poynter’s in-house counsel, has written, calls for a fact-dependent analysis done on a case-by-case basis and guided by several factors that courts would likely consider.
Those factors include: Who created the account? Who directs and creates its content? Did an employee create the account for her job? Did the employee have the account before her job? Who has access to account information, including passwords? Is the account associated more closely with an employer’s brand or with an individual employee? What do any relevant contracts or policies say?
Of course, the cheaper thing to do is not to litigate over those factors, and the best way to avoid this is by spelling out in advance—in a contract or a company social-media policy—who owns what, and what happens to accounts when an employee leaves. Make clear that all reporters and editors get to keep their accounts and followers no matter what, for instance, or that they don’t get to keep their company-branded accounts created in the course of their employment. The point is to be clear. As an example, consider this policy, from Dell:
If you participate in social media activities as part of your job at Dell on an account created for Dell, that account may be considered Dell property. If that account is Dell property, you don’t get to take it with you if you leave the company—meaning you will not try to change the password or the account name or create a similar sounding account or assert any ownership of the contacts and connections you have gained through the account. This doesn’t apply to personal accounts that you may access at work, but would certainly apply to all Dell-branded accounts.
I reviewed a dozen news organizations’ policies on journalistic ethics and social media, and none was as clear as Dell’s on the issue of account ownership and control. Most didn’t address it at all. They should. And journalists should be prepared to negotiate over the terms to protect their own interests, which are likely to frequently depart from the interests of news organizations. The bargain has to be fair for each side, both of which would benefit from stability and consistency in resolving social-media issues without the need for costly litigation.
All of which is to say: These may be relatively uncharted legal waters, as the case against Bitter shows, but a little planning could reduce the uncertainty and its corresponding risks.
ICYMI: Why did The New York Times grant anonymity to the op-ed writer?Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.