C3 Patent and Intellectual Property Law

Dec282011 | Steve O'Donnell

Does a twitter follow have a value? What does this mean for RT contests?

If you’re on twitter, or if you’re an employment lawyer, you’ve probably seen the story about the case to decide ownership of a twitter account. Interesting story, and one that should be kept in mind when you mix business with twitter.

The story is all over the internet, so I’m not going to hash the whole thing out here again. If you’ve been able to avoid it so far, you might want to take a look at this NYT article.

In a nutshell, Noah Kravitz worked for Phonedog and tweeted as Phonedog_Noah. When he left, he kept tweeting as NoahKravitz (you can change your twitter name without losing followers). Phonedog sued for possession of the account stating that it is a “customer list” and asking for damages of $2.50 per month, per follower (17k followers). There are a number of “facts“ I’m leaving out, because I’m sure they’re up for debate (i.e., who said what, why the account was opened, etc).

The usual headline to this story is that the case will decide if you or your employer owns your social media accounts. I don’t think it will do that. I doubt many people would think that they own an account if it was opened by their employer for the purpose of communicating with customers (which is, I hope, explicitly drafted into an employment contract, if it’s not, it should be or the business is just asking for trouble). On the other hand, I don’t think there is much of a question that if I work for a company and also run a personal twitter account, that the account isn’t the property of my employer. In those situations, there really isn’t a question to be resolved. Here, the question is closer to “whether a list of followers of an account that was associated with a business constitutes a customer list?” A contract could have settled this before it ever became an issue. Even if there was no traditional employment contract in place, the foresight to send an email and create a “paper” trail about ownership could have kept this from becoming an issue.

Enough about that, lets just say the main idea is that is should be clear from the start who owns what. What’s more interesting to me is that thought that there is some monetary value to a twitter user.

One of the things I like to roll around my head from time to time is the legality of twitter or Facebook contests. You know the ones, “everyone that Likes my page will be entered to win…” or “ReTweet this by Friday at Midnight for a chance to win…” I posted on it once before, you can read that if you’re bored.

In brief, there are contests, sweepstakes, and lotteries. Contests require skill, sweepstakes are open to everyone, and lotteries require something like a lottery ticket to enter (the legal term is consideration--some tit for tat). Those cereal box promotions, or McDonald’s Monopoly game look like lotteries because you’re supposed to buy something to get a game piece, but read the rules and you can also send away for a free entry--which is how they avoid being classified as a lottery.

Contests and sweepstakes are usually legal (there might always be some state-specific issue, so check that out before you get yourself in trouble), but lotteries are usually pretty tightly controlled by the state. I’ll let you decide for yourself if that’s so the government can run it’s own lottery as a monopoly or if it’s to protect the public from unscrupulous lotteries (the old, illegal, numbers games).

Usually people get confused about the terms, so just because someone calls something a contest, don’t assume they mean it’s a contest.

The interesting thing I see coming from the twitter-ownership case is a possible finding that twitter followers have some real value. That is a core presumption to Klout.com (and a few other “social influence” marketers) where you can get stuff based, in part, on your number of twitter followers.

If, the court states that there is some value to twitter followers, then the question of whether a “ReTweet to enter” promotion is a lottery or a sweepstakes suddenly becomes more of an issue. If there is value to a new followers, a like, a retweet, or any other social media metric, then is trading one for a chance to win something make that promotion a lottery or a sweepstakes? It sounds like a lottery to me, and running an illegal lottery is generally to be avoided, unless you’re in the illegal lottery business. On the other hand, there could be some value to a Like (or whatever), but not enough to transfer any benefit on the site being Liked. In other words, an individual Like or RT might be of such little value that it’s not worth the bother for a court to care about. Of course, if the court goes along with Phonedog and agrees that each follower is worth $2.50, that is probably enough consideration to turn these promotions into lotteries and possibly cause lots of problems for lots of people.

Now, of course, it’s probably going to require a bored Attorney General to look into a simple Facebook or Twitter promotion, but it could happen. There’s also the possibility that you’re violating the law of another country if someone in their borders “Likes” your page as an entry to your promotion. That could be a whole new circle of Hell. Even if you don’t have a legal issue because of your request for ReTweets being open to the world, you might incur more expense than you intended if someone half a world away wins your promotion and wants their prize mailed to them.

So, I haven’t really settled things here, like lawyers tend to do, so what is the takeaway? At the very least, I’d post rules for a promotion and limit it to people within the US. You might also want to limit it to people in your state or city--what is the point of having someone win your promotion if you’re a local business and they’re half the country away and likely to never actually purchase your services/products? Of course, the best idea is to hire an attorney to look at the issues and give you advice on how to structure things to minimize the chance of running into troubles.