A number of courts throughout the nation are grappling with disputes between employers and departing employees over the ownership of social media accounts. These employers are attempting to seek ownership over company Twitter and LinkedIn profiles claiming, among other things, that these contain “trade secrets.” Employees dispute these contentions by pointing out that there is nothing “secret” about social media profiles and that employers have no inherent property interests in Twitter and LinkedIn accounts.

For example, in Phonedog v. Kravitz, No. 3:11-cv-03475 (MEJ) (N.D. Cal., Nov. 8, 2011), a federal court in California denied a motion to dismiss where the employer sought damages for each Twitter follower that a departing employee took with him. The employee was given use of and maintained a Twitter account for the employer’s business during his employment. When he left, he changed the Twitter account handle and continued to use the account. Phonedog and its former employee do not have a written agreement pertaining to ownership of the disputed Twitter account. The company alleged several claims against the departing employee, including misappropriation of trade secrets, conversion, and tortious interference with prospective advantage.

Another such pending dispute is Eagle v. Morgan, No. 2:11-cv-04303 (RB) (E.D. Pa., Dec. 22, 2011). A federal court in Pennsylvania denied a motion to dismiss in a dispute over an employee’s LinkedIn account. The disputed LinkedIn account was used for company business and developed by company personnel. As in Phonedog, the parties do not have a written agreement as to ownership of the disputed LinkedIn account. Both the company and the employee brought claims against one another over use of this LinkedIn account.

The above cases are headed into prolonged discovery and extensive litigation. These disputes may have been avoidable had the parties entered into a clear written agreement at or near the inception of the employment relationship. Such an agreement was upheld in Ardis Health, LLC v. Nankivell, No. 1:11-cv-05013 (NRB) (S.D.N.Y., Oct. 19, 2011). A federal court in New York granted a preliminary injunction and required an employee to turn over access to social media sites to her employer pursuant to the obligations under the written Non-Disclosure and Rights to Work Product Agreement between the parties.

All employers who profit from their employees’ use of social media should be aware of and carefully analyze these issues. In many cases, a properly drafted agreement delineating the property interests of employee work product will save employers from time-consuming and expensive litigation over ownership of social media accounts.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.