A lawsuit filed in the U.S. District Court for the Western District of Virginia is pitting a news publisher against a former reporter over a Twitter account connected to a local newspaper, but used solely by the reporter for years.

BH Media Group, a publisher of 31 local daily newspapers, including the Virginia-based The Roanoke Times, has brought a lawsuit against former employee and sports journalist Andy Bitter over his use of a Twitter account that BH Media claims to own, citing employee contracts Bitter signed.

The lawsuit was filed by lawyers from Williams Mullen, who declined to be interviewed for this article. Bitter also declined to be interviewed as well.

The lawsuit is unique as it is treads into fairly uncharted waters in trying to define how a social media account related to a business should be treated under the law. The case likewise shows the nascent and novel legal strategies attorneys are looking to leverage in litigating social media ownership and disputes.

In a complaint filed on Aug. 7, BH Media charged that Bitter violated the Defend Trade Secrets Act, the Computer Fraud and Abuse Act and the Stored Communications Act, in addition to related state laws in Virginia, for continuing to use the Twitter account in question. The complaint said the company acquired the Twitter account in 2013 as part of a larger purchase of another news publisher. Since at least 2011, only Bitter used the Twitter account, which posted Roanoke Times sports articles and other sports-related content, and currently has over 27,000 followers.

When Bitter resigned in July 2018 to go to sports journalism outlet Athletic Media Group, he refused to hand over the account, whose password and login information were only known to him, according to the complaint.

BH Media claimed that Bitter broke a contractual agreement, given that the company's handbook states that the Twitter account belonged solely to the publisher. What's more, the complaint alleged that because the Twitter account provides direct access to over 27,000 users that have “indicated an interest in the products of the [Roanoke] Times,” and “provides invaluable insight into the interests of those individuals and entities and general trends across that curated list of followers,” it is a trade secret of the company.

Aaron Swerdlow, an associate at Glaser Weil Fink Howard Avchen & Shapiro, noted that the argument that a Twitter account constitutes a trade secret “has been employed in [a] couple of cases, most notably in a case PhoneDog v. Kravitz” in the U.S. District Court for the Northern District of California.

But Jeffrey Neuburger, partner at Proskauer Rose, said BH Media's argument is “slightly different” from others utilized for such litigation. “It seems from the complaint that the plaintiff is not actually arguing that the Twitter followers are a trade secret, but arguing that the access credentials and the ability to interact with those followers and extract information from those followers is a trade secret.”

Neuburger noted that most all cases that have argued some aspect of a social media account are trade secrets, including PhoneDog, have settled out of court, so it's a not entirely clear how the arguments will hold up in trial.

And in the particular action being brought by BH Media, there seems to be concrete arguments for and against classifying the account as a trade secret. For one, there is “contractual and economic evidence to support it being trade secrets belonging to the newspaper,” Swerdlow said. There is also the “argument that [Bitter] wouldn't have gotten a job at The Athletic if he didn't have the Twitter followers with him.” On the other hand, “it could be argued that most of the followers are following the reporter and not the publication”, he added.

“From a business perspective. the value of this account could be the information the reporter is disseminating. And the 27,0000 followers, that can be duplicated elsewhere. Presumably most of the followers would go over” if the reporter were to switch accounts, he said.

The issue of the Twitter account's ownership will directly impact whether Bitter is found to have violated the trade secret laws, as well as the other federal laws. But determining who owns a social media account that is tied to a business or an office can be a fairly difficult task. “It's a complex issue. It's very fact-specific,” Swerdlow said.

BH Media alleged ownership of the account in part because what was agreed to by Bitter in the employee handbook. But it's difficult to definitively rule on the question of ownership without knowing Bitter's side as well. “It's possible there are facts not included in the complaint that are more favorable to the defendant,” Swerdlow said.

Neuburger added that it is likely “a number of facts are going to be discovered to evaluate ownership. Obviously the company's policies and employment contracts are going to be important, and the measure of control the company had over the Twitter account.”

But also important is “who had administrative privileges, who the account was registered under, and who controls the passwords,” he said.

While this case has the potential to influence how future courts address social media accounts connected to a business, many are skeptical that it will even go to trial in the first place. Neuburger noted that almost all cases involving social media accounts “have settled after some primary ruling by the court, a motion to dismiss, something like that. If history is an indicator of future, I would say the same thing is going to happen here. The cost of litigation is high, and I'm guessing neither party is anxious to spend that.”

Read the complaint here: