Nigel Miller answers the FT question on employees and their twitter accounts

October 17, 2011

QUESTION:
I run a small digital and social media agency and have recently headhunted a new director from a rival agency. Part of the reason I was keen to employ this person was down to the fact she has a huge social media following, particularly on Twitter. I assumed my new employee would simply change the name of her Twitter account to include my agency, rather than the previous one and these followers would be transferred. However, the rival agency believes these followers belong to them and she should set up a new twitter account, leaving her old one in their hands. Who has rights to the account and followers?


ANSWER:
The key question is whether the rival agency had a "Social Media Policy". Many employers introduce such policies to manage the legal risks of social media in relation to for example reputation, defamation, intellectual property, confidential information and ownership of contacts.
 
If there is no such policy, and no relevant clauses in her employment contract, the former employer is in a weak position.
 
They may argue that the account belongs to them as the account was created by the employee in the course of employment. However, Twitter accounts tend to blend personal and business and it is far from certain that such an argument could succeed.
 
If there is copyright in a tweet which is not inevitable then that may belong to the employer in accordance with the rules regarding ownership of copyright in employee works. However, a tweet is ephemeral and owning the copyright will not help the former employer capture the followers.
 
If the Twitter name includes a brand of the former employer, then they could require the name to be changed but the new company will also want that.
 
The main issue is in relation to the followers. While the law may protect a company's contact database held securely on its internal systems, it is unlikely to protect Twitter followers who are self-selecting and anything but confidential. It could be said therefore that no-one "owns" followers and in reality it is they who decide whether to follow the new director into her new role.


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Nigel Miller
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nmiller@foxwilliams.com

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