Is it “misappropriation of a trade secrets” to contact each person who follows an ex-employer’s Social Media profile for purposes of promoting a competing business?
Early in my law school career, one phrase stuck with me right away: “tough cases make bad law.” This, of course, begs the question as to what makes a “tough” case. Usually it’s a unique fact pattern that has limited applicability to a broader spectrum of cases. In the nascent and growing area of Social Media law, there is no shortage of quirky cases.
My hat is off to Eric Goldman who recently blogged about a social media case that is “tough” because of the way that the lawyers framed the issue. On its face, the case of Christou, et. al. v. Betaport LLC, et. al., Colorado District Court case number 2010cv02912 is an unfair competition case between a night club owner and one of his former partners. The case, being tried in a federal court in Denver, Colorado, involves trade secret theft and antitrust allegations and alleged misuse of MySpace “friends.” Essentially, the complaint alleges that Roulier, a principle of Beatport and former associate of Christou, used a MySpace account to promote his club at the expense of Christou.
This reason that case is “tough” is that both the plaintiffs’ lawyers and the court struggled to frame the issue. Plaintiffs’ lawyers created the problem by alleging that the “trade secret” violation occurred when defendants “secured
I think this case is important because it is difficult to break down both the confused framing of the legal issue and the court’s apparent confusion with how to address it.
From my perspective the key take-away is a perspective on the trade secret implications of Social Media accounts. Business and their lawyers are constantly trying to evaluate the legal risks of Social Media and provide guidance on how best to mitigate those risks. This case highlights not just why social media account information is sensitive that needs to be protected, but also the risks when a company lacks account access controls and oversight.
Protecting a Social Media account as a trade secret is not as obvious as it may first appear. One’s gut reaction is to think of the account “followers” as the protected asset. Ostensibly, the primary “value” of an account is the list of “followers.” A list that is publicly available is, however, not a secret. A better approach is to treat the login credentials themselves as the trade secret since this controls one’s ability to access the account and to communicate with those followers.
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