27,000-Plus Reasons for a Lawsuit
by George H. Pike
I don’t use social media that much. I have a Facebook account for maintaining personal connections to family and friends and a LinkedIn profile for work-related contacts, but I don’t actively post much content. I do have an account with Twitter and follow a few Twitter feeds, and I have come to see it as an effective news and real-time information communicator. But I can probably count on one hand the number of times I’ve tweeted. Certainly, many of my personal and professional friends and peers make much greater use of Twitter than I do. I know of several fellow librarians and law faculty members with a very active Twitter presence—they have hundreds or even thousands of followers.
Andy Bitter (@AndyBitterVT) is an active Twitter user, although I neither follow him nor retweet things from his feed. Bitter was a sports reporter for The Roanoke Times, with a primary beat covering Virginia Tech university’s athletics program. (I’m a Big Ten fan, so I don’t follow Virginia Tech sports.) Given the popularity of Virginia Tech athletics, Bitter amassed more than 27,000 followers of his tweeted reports, comments, articles, and images, as well as his retweets.
In early July 2018, Bitter resigned from The Roanoke Times and took on a similar sportswriting position with The Athletic (theathletic.com), an online, subscription-based sports reporting and commentary website. The focus of his writing remains Virginia Tech athletics—primarily football. He announced his departure and new destination and urged his followers to continue reading him on The Athletic.
The problem was that while Bitter controlled the login and password to @AndyBitterVT, his former employer, BH Media Group (the parent company of The Roanoke Times; bhmginc.com) asserted that it owned the Twitter feed, its contents, and its 27,000 followers. When Bitter refused to disclose the access information and discontinue the account, BH Media Group filed a unique federal lawsuit claiming that the Twitter account amounts to a trade secret and that Bitter’s use of it violates both federal and state trade secret laws. (The lawsuit is available at pacer.gov; registration required.)
Trade secrets encompass a lesser-known part of intellectual property law that covers information a personal or corporate owner has kept secret and that has economic value to its owner because of its secrecy from competitors and the public. As such, it is different from patent protection or copyright protection in that in both of these parts of intellectual property law, the property is disclosed to the public but protected by the respective patent and copyright laws.
Coke and KFC
Classic examples of trade secrets are the formula for Coca-Cola and the 11 herbs and spices of Kentucky Fried Chicken (KFC). It would have been impractical to patent the formula for Coke, because it would had to have been disclosed and would only have been protected for 20 years. The KFC recipe would not be entitled to copyright protection, because lists, such as those of ingredients, are not considered to be original enough to be copyrighted. So for both of them, trade secret protections work.
Trade secret protections often apply to other proprietary information, such as customer lists, marketing data, and internal R&D. There are requirements that the owner must take active steps to keep the information secret and show that there is value in the secrecy. There is nothing preventing a public product that is protected by trade secret law from being reverse-engineered. And some information may be too widely ascertainable to be a secret, such as a customer list in an industry that would cater to a limited number of customers.
‘Curated’ Customer List
The lawsuit claims that the 27,000-plus followers of Bitter’s account are “sources of information and channels of communication” that constitute trade secrets. The followers, it says, would seem to be similar to an exclusive “curated” customer list, which offers “invaluable insight into the interests of those individuals and entities and general trends across that curated list of followers.” In addition, followers can receive direct messages (DMs) from the account, and information that is not “publicly available to or readily ascertainable from outside sources” can be exchanged. These factors, BH Media Group asserts, constitute the trade secrets that Bitter “took.”
Bitter has not yet formally responded to the lawsuit. I was able to find his Twitter feed and scroll through his most recent tweets with no problem—there was nothing “secret” involved. I followed Bitter and saw that all of his tweets showed up on my feed (dominating it, in fact, as he’s an active Twitter user), including a pinned tweet pitching The Athletic website, but again, there was nothing particularly secret about it. I could DM him, or he could DM me, but that could have equally been an instant message, email, or other communication that would not necessarily have been secret.
Value of a Follower
As one of Bitter’s 27,000-plus followers, it’s possible that in the aggregate, my demographic information may have some value. A past lawsuit involving similar arguments asserted that a Twitter follower had an economic value based on the claim that users followed the particular Twitter account—also managed by a reporter for a news organization—because of their interest in the organization and what it could offer, not because of the interest in the actual account manager. However, that case settled before the court could render its decision. Bitter may argue that his followers were focused on his insights and commentary and not on anything specific to The Roanoke Times, which would reduce its value to the newspaper.
Interestingly, it appears that BH Media Group’s employee handbook states that social media and communications accounts are the property of BH Media Group, but at least at this point, the lawsuit does not claim a breach of contract. It does claim the tort of “conversion,” which is the use of property that you are not authorized to use.
It is very early in this lawsuit, and a likely outcome is yet another settlement, which will leave unanswered the ultimate question of whether a Twitter account and its followers are trade secrets. However, employers of people who use Twitter in the context of their employment should take steps to clarify the ownership of the accounts and who has rights to the content at any given time, but in particular, when the employee leaves the company.