hea dnotes

Social Media Sobriety Tests for Employees?
Yuri Mikulka The author is a shareholder with Stradling Yocca Carson & Rauth, Newport Beach, California, and an associate editor of Litigation.

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Corporations face new liability risks, and new sources of embarrassment, as they venture further and further onto the Internet. Consider how quickly an ordinary news event can create a PR nightmare through no fault of the company. In 2012, after President Obama’s mention of his grandmother during a presidential debate, a KitchenAid Twitter team member posted on the company’s twitter account—directed to 24,000

followers—“Obamas gma even knew it was going 2 b bad! ‘She died 3 days b4 he became president.’” The company quickly deleted the tweet but not before it was picked up by USA Today and other major publications, and generated negative PR. Social media is without question one of the most powerful marketing tools. Based on 2012 statistics, 98% of the American online population uses social media, an average user spends over 15 hours per month on Facebook alone, and 190 million tweets are sent every day. But social media also is fraught with legal peril when not carefully managed. And the first emerging question for the courts: who owns an employee’s presence on the web? Are the profiles employees built proprietary to their companies—or even a trade secret? In Christou v. Beatport, LLC, 849 F. Supp. 2d 1055 (D. Colo. 2012) and PhoneDog v. Kravitz, Northern District of California, Case No. C 11-03474, federal courts in Colorado and California addressed these intriguing, novel issues. Thus far, these courts have rejected an argument that social media profiles cannot be a company’s trade secret as a matter of law. The Christou court noted that even if the allegedly misappropriated MySpace profiles are visible, “interests and preferences, and perhaps most importantly for a business, contact information and a built-in means of contact” are not necessarily public. It also helped that the employer required the use of a log-in and password to access non-public member data on MySpace. In addition, PhoneDog addressed the issue of whether a company can assert a cognizable damage for a misappropriated Twitter follower. There, the employer alleged damages of $2.50 per follower per month, which the court held was sufficient to state a claim. These decisions signal that even social media profiles can receive trade secret protection and can have economic

value—as long as some information remains secret and access is limited. Companies also are grappling with preventing leakage of trade secrets on social media. This is difficult in a world where oversharing online is expected and customary. As Facebook founder Mark Zuckerberg declared, privacy is no longer a “social norm.” He seems to be right. Perusing Facebook and Twitter, it is not unusual to see spontaneous postings about eating, working, and the recreational and sexual habits of friends, neighbors, and complete strangers. Add alcohol, and it gets worse. Regretted drunk postings have even triggered the demand for apps and programs that either instruct the user to shut down their social media accounts, or does so, until the user passes an online sobriety test. (See www.youtube.com/ watch?v=uy1PIgjCqRM or the Webroot Sobriety Test.) So is it surprising that a careless employee may blab about his company’s latest cool, but yet unreleased, technology online? Clearly, any effective means to control company leaks must start with the employee. Recognizing this, some companies have taken drastic measures to prevent risky disclosures. In 2012, IBM banned its employees from using Siri, the personal assistant feature on iPhone, fearing that confidential information may be disclosed through spoken queries sent to Apple. Yahoo has taken a more punitive approach. According to All Things Digital’s Kara Swisher, Yahoo’s general counsel distributed a company-wide memo in 2012 warning that, “We will fire employees who leak company confidential information …If you do it, you can go to jail and face a very large fine.” Yahoo went as far as offering a $1,000 bounty for information on leakers in 2009. Even if the company is not ready to threaten termination, jail, a fine, or offer bounty, at a minimum, every company should have an up-to-date social media policy, employment and confidentiality agreement, HR policy, and training that

Published in Litigation, Volume 39, Number 3, Summer 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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explain what is confidential, how to avoid inadvertent disclosure, who owns the account, what is acceptable online activity, and the required use of a company-controlled log-in/password. But be careful. Some states like California recently passed a law barring employers from asking employees and job applicants for log-in information and passwords to personal social

media accounts. Bottom line, companies should keep an eye out for ever-shifting law and keep their policies and practices up-to-date. In the meantime, perhaps the developer of the social media sobriety test can offer an app to curtail careless trade-secret posting? For instance, before posting, a user would be asked: does this include

your employer’s information, is it nonpublic information, would your boss disapprove, are you drinking, and can this wait until the morning? Yes to any of these questions would prevent access to social media and encourage neglected offline activities . . . such as conversing with your dinner companions. q

Published in Litigation, Volume 39, Number 3, Summer 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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