Wednesday, December 28, 2011

Defining a "customer" in the social media age.

Anyone in the sales or human resources industries probably knows a lot about how proprietary their contact lists are.  If you leave the company, the company owns your rolodex (electronically speaking of course).  Those names could be worth more than the company’s entire product inventory, especially if you are a B2B large volume dealer.  Or an executive search firm.  Most contracts prohibit you from taking the client files with you, or even contacting them for a certain period.

So here is a new twist.  Noah Kravitz was a hired to tweet for Phonedog.  He even had the company name in his username (@Phonedog_Noah).  He left the company, changed his username (to remove Phonedog) and kept the 20,000 followers.  Phonedog sued to get the account (and followers) back. 

So this is a great example of the difference between the letter and spirit of the law.  Noah’s contract didn’t say anything about Twitter followers, just customer lists.  The law can decide that where the contract says “customer list”, that includes Twitter followers implicitly.  Twitter followers are a "kind" of customer in the social media age.  Or it can decide that Twitter followers weren’t included because they are not the same as customers.  Or that twitter followers were not the “original intent” of the contract, to quote one of Justice Scalia’s favorite concepts. 

But the contract was signed before Twitter even existed.  You could argue that they should have updated the contract, but with technology changing as fast as it is, that would be unworkable.  Every two months they would have to add new social media.  Or they could define it so generically that it would be unenforceable in court as too vague.   In light of this argument, it seems the court has to go with the company.  And yet . . .  I could make an argument the other way too.

But I will let you do that in the comments, just to get a discussion going.