By: Cameron Miller
Sports media Twitter accounts are often highly-trafficked, valuable assets for writers and their outlets. Reporters from national publications, including USAToday, Sports Illustrated, Yahoo, and ESPN, attract tens and hundreds of thousands of Twitter followers, who then generate revenue for the publication by “clicking” through the content posted on the account’s feed. That linked content almost invariably takes the “follower” to the outlet’s website, where the outlet has sold advertising space. Generally, a higher volume of clicks and views means greater exposure and ad review for the site—a vital income stream in an era of digitization and falling print subscriptions.
If former Roanoke Times (Virginia) sports writer Andy Bitter, who currently works for The Athletic, was unaware of these economic realities undergirding the relationship between sports media and social networks, he does now. In early August, Bitter was hit with a seven-count trade secrets appropriation lawsuit from the Times (owned by BH Media Group) over a Twitter account (@AndyVitterVT) he used during his career at the newspaper and kept upon moving to The Athletic. That, BH alleges, was unlawful, with the company claiming it owed the account and, more importantly, access to its approximately 27,000 followers.
Bitter’s predecessor, Kyle Tucker, created the account in question in 2010 while covering Virginia Tech athletics for the Times’ sister paper, the Virginian-Pilot (the Times and the Pilot were acquired by BH Media in 2013). The intent of the account, according to the complaint, was “to engage readers and subscribers, solicit future readers and subscribers, promote the newspapers, and cover issues related to Virginia Tech athletics.” After Tucker left the Pilot in 2011, Bitter was hired and “was provided access to and the login information for” Tucker’s account; he subsequently changed the “handle” to “@AndyVitterVT” and the account’s password. As the operator of the account, Bitter alone had access to information valuable to the parent newspaper, namely the followers and the data their interactions with the @AndyVitterVT account generated. The complaint characterizes this information as “trade secrets” owned by BH Media.
Bitter’s exclusive control of the account was acceptable to BH Media—until he announced his intention to leave the Times in July 2018, and then did so without relinquishing the account as required by BH’s employee handbook. The handbook, whose terms Bitter agreed to be bound by as recently at 2015, specifies that the social media accounts provided to BH employees are property of BH and, like other company property, are to be returned by the employee the cessation of employment. This Bitter has not done, and he continues to post from @AndyVitterVT in his capacity with The Athletic—including, as the complaint notes, posts soliciting subscriptions to The Athletic.
The complaint sets forth seven causes of action:
BH alleges Bitter has violated federal and state trade secret protection laws in maintaining access to the account (and its information) he inherited from Tucker. The complaint emphasizes the account’s value to BH in its “efforts to identify, engage with, and retain subscribers across the Country,” while also claiming that any attempt to recreate a separate account to reach the same “followers” would be lengthy, costly, and ultimately, impossible. BH asserts that the only remedy to rectify the ongoing damage is to require Bitter to turn over control of the account to the Times.
The complaint also claims Bitter’s conduct is illegal under various computer and electronic data protection statutes. One of the those is the Computer Fraud and Abuse Act, which Bitter allegedly violated by “accessing, manipulating, and posting content to BH Media’s Account and follower list after his resignation on July 6, 2018” and following the cease-and-desist letter sent to him on July 11, 2018. Bitter’s conduct also violated the Stored Communications Act and Virginia’s Computer Crimes Act, according to the complaint.
BH sets forth a property (Common Law Conversion) and tort (Breach of Fiduciary Duty) claim against Bitter. By refusing to turn the account over to BH, Bitter “wrongfully and intentionally converted the Account to his own use” and is now utilizing the account, its followers, and other data to “unfairly compete” with BH by “promot[ing] a direct competitor’s goods and services.” The complaint then describes Bitter’s role as the operator of the account as one of a fiduciary who owed to the company an obligation to “maintain the confidentiality of proprietary and confidential information to which he alone was entrusted.” His failure to do so has “harm[ed] [BH’s] competitive position, its customer relationships, its economic expectancies, its business reputation, and its goodwill.”
On these bases, BH requests, amongst other relief, that Bitter be required to return control of the @AndyVitterVT account to BH. At multiple junctures in the complaint, BH estimates its damages to be at or above $150,000.
Bitter’s answer and counterclaim, both filed in late August 2018, tell a far different story than that found in BH’s complaint. The critical issue, according to Bitter, is that it was Tucker—not the Times or BH—who provided him with the account’s credentials, and that neither BH or the Times ever had control over or an ownership interest in the account. In fact, Tucker maintained sole access to the account for several months after he left the Pilot in August 2011, apparently without issue; it was in only October 2011 that he gratuitously provided Bitter access to it.
The heart of Bitter’s counterclaim is defamation, which he claims arose in the Times’ reporting on Bitter and the paper’s dispute. In an article describing BH’s lawsuit, the Times wrote that “[t]he company gave Bitter the login for the Twitter account,” despite knowing that statement to be false (it was Tucker who provided access to the account). More generally, Bitter says, the paper and its parent, BH, have worked to paint him as a “dishonest,” “untrustworthy former employee” who “lacks integrity[.]” The counterclaim demands $75,000 in compensatory damages and an equal amount in punitive damages.
While ownership of a sports media member’s Twitter account is almost certainly an issue of first impression for the federal courts in Virginia—and possibly elsewhere—such suits have the potential grow both in prevalence and significance. As emerging sports media companies like The Athletic continue to poach talent from other outlets, and assuming the digitization observed in the media industry as a whole continues to accelerate, social media accounts and their data figure to see their value as assets grow—and the stakes of associated litigation rise in lock step. A parallel trend to track is the steps media companies and writers/reporters take to protect their ownership stakes in social media accounts and how the potential tension over ownership impacts an industry already in the throes of monumental shifts.
Cameron Miller is a 2016 graduate of Stanford University and earned a Master's in Sports Law & Business from Arizona State University in 2017. He is the Sports Lawyers Association's Research Assistant and is a first-year law student at Georgetown University.
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