Social media's changing legal landscape provides cautionary tales of "Pinterest" to sport marketers.

Cornish, Alfonso N., II ; Larkin, Ben

Introduction

The use of social media as a communication tool to engage others has rapidly proliferated over the past decade (Wallace, Wilson, & Miloch, 2011). According to the Pew Research Center, 73% of all online adults were using social media as of September 2013 (Brenner, 2013). Facebook leads the way with 71% of all online adults using the platform in 2013; however, a growing number of individuals are also using other emerging platforms such as LinkedIn (22%), Pinterest (21%), and Twitter (18%) (Duggan & Smith, 2013). Further, approximately 42% used multiple social media platforms (Duggan & Smith, 2013). The prevalence with which consumers access and utilize these tools has made it especially attractive for marketers. With approximately half of the U.S. population ages 18-35 actively following a sport team and 35% actively commenting via social media, mobile marketing strategies have become especially attractive for sport marketers (Keller, 2013). Given this demand, teams and other sport organizations are using a variety of social media platforms in new and innovative fashions aimed at growing their fan base. Marketing experts have generally found contests, prizes, games, and video (most notably of the behind-the-scenes variety) to engage their fans (Spanberg, 2013).

The continued emergence of social media platforms has, perhaps not surprisingly, also led to an increase in litigation. The vast majority of incidents and issues take place outside the scope of the sport industry; however, given the frequency with which sport marketers are engaging in the use of social media platforms, it is essential that sport marketers maintain tabs on the current legal environment. Failure to do so can have potentially detrimental implications for sport organizations. Accordingly, this article explores a sampling of recent judicial decisions involving social media platforms. The following scenarios and subsequent discussion aim to assist sports practitioners in navigating potential legal traps involving the use of social media platforms.

The LinkedIn Dilemma

In this hypothetical scenario, Ms. Jordan, an employee of Mr. Richardson (Vice President of Marketing for a Major League Baseball team) has been tasked with the responsibility of maintaining Mr. Richardson's LinkedIn account. While the page primarily includes information about Mr. Richardson's career and interests, Ms. Jordan changes aspects of the page to also incorporate marketing information about the team. Later, Mr. Richardson resigns and cannot access the account. Who owns the LinkedIn account?

This question was the focus of the decision in Eagle vs. Morgan et. al. (2013). In 1987, Linda Eagle ("Eagle") and Clifford Brody ("Brody") co-founded Edcomm, Inc. ("Edcomm"). Edcomm adopted no policies to inform employees that their LinkedIn accounts were property of the company. In 2009, Eagle created her own LinkedIn account using her Edcomm e-mail address. Eagle gave her LinkedIn password to numerous Edcomm employees. Upon Eagle's termination, an Edcomm employee changed the password on Eagle's LinkedIn account, thus restricting her access to the page. Accordingly, Eagle initiated a lawsuit in 2011 under Pennsylvania common law statutes, alleging, inter alia, the unauthorized use of her name, invasion of privacy by misappropriation of identity, and misappropriation of publicity.

Noting that the defendants had utilized Eagle's name without her consent for commercial purposes, the court sided with Eagle on all three of these legal claims. The court stressed that Eagle proved that her name had commercial value. Moreover, the court noted that Edcomm invaded Eagle's privacy because an individual searching for Eagle on LinkedIn would have unknowingly been routed towards a page containing information about Edcomm and another Edcomm employee. Despite winning on the three claims, Eagle did not make a showing of a "fair probability" that she sustained any damages.

The Twitter Quandary

Mr. Roberts and Mr. Parker are the founders of XYZ Marketing, Inc., a sports marketing firm. The firm operates a Twitter account with 150,000 followers under the handle @xyzsports. Mr. Parker created the account and is chiefly responsible for updating the account and sending out most of the company's Tweets. Conversely, Mr. Roberts only occasionally suggests topics for the firm to "tweet out." Eventually, Mr. Parker decides to open his own agency. Realizing the economic importance of the Twitter followers, Mr. Parker changes the handle on the Twitter account to reflect his new company (@zzzparkersports) and departs from XYZ Marketing, taking with him its Twitter account and its followers. The company has no social media policy in place that addresses ownership of Twitter followers.

The issue of who owns a company's Twitter account was the basis of the lawsuit in PhoneDog v. Kravitz (2011). PhoneDog alleged that Kravitz, a product reviewer and video blogger, was given control of and maintained the Twitter account "@PhoneDog_Noah," which allegedly generated approximately 17,000 Twitter followers during Kravitz's employment. Kravitz ended his employment with PhoneDog in October 2010 and the company requested that he immediately terminate use of the Twitter account. Kravitz refused and subsequently changed the account handle to @noahkravitz. In July 2011, PhoneDog sued Kravitz asserting four causes of action: 1) misappropriation of trade secrets; 2) intentional interference with prospective economic advantage; 3) negligent interference with prospective economic advantage; and 4) conversion.

In December, 2012, the parties settled. A decision on the merits of the case would have likely given clear guidance to business organizations and individuals regarding the legal issues surrounding the ownership of Twitter followers. As a result of the settlement, Kravitz maintains sole ownership and custody of the Twitter account.

The Facebook Fiasco

Recently, there has been much media speculation that Smithtown University, a public institution in Rhode Island, is considering removing Mr. Hansen from his post of athletic director. The media has also speculated that a local businessman, Mr. Hixon, is rumored to be seeking the A.D. position. Most employees do not actively support this change; however, two employees take to Facebook to voice their opinion that a change of personnel should indeed be implemented. Specifically, they post supportive messages on Mr. Hixon's Facebook page and also "like" several statuses posted by Mr. Hixon alluding to his qualifications for the A.D. position. Ultimately, however, Mr. Hansen's contract as A.D. is renewed for another three years. Mr. Hansen elects to terminate the two employees due largely to their support for his opposition. Assuming the requisite "state action" can be established (typically so for public educational institutions), can the terminated employees claim retaliation on the basis of a violation of their First Amendment freedom of speech rights?

The hypothetical scenario fashioned above recently played itself out in a non-sport context in Bland et al. v. Roberts (2013). In Bland, six plaintiffs claimed that B.J. Roberts, the Sheriff of Hampton, VA, violated their First Amendment rights to freedom of speech and freedom of association when he terminated their employment after he was re-elected. Two of the plaintiffs, Daniel Ray Carter and Robert W. McCoy, expressed their support for Roberts' electoral opponent via his Facebook campaign page. In the case of McCoy, the judge concluded that a reasonable jury could conclude that Roberts' knowledge of McCoy's support for Roberts' opponent would have strongly motivated Roberts not to reappoint McCoy. A similar rationale was applied to the case of Carter. The judge ruled that by clicking the "like" button of the electoral opponent's campaign page, plaintiffs Carter and McCoy made an unmistakable, substantive statement of approval. Moreover, Carter's speech was deemed to be that of a private citizen, and more importantly, political speech deserving of the highest degree of protection under the law. Similar rationale was applied to the judge's finding for McCoy, as his supportive post on the opponent's page, too, was considered free and political speech made by a private citizen that was nondisruptive to the workplace.

A Legal Lesson in Text Message Marketing

While the recent social media cases discussed to this point have raised issues and set precedent that serve to limit the means by which sport organizations can exploit social media and mobile marketing practices, Emanuel v. The Los Angeles Lakers (2013) actually served to protect sport organizations in their use of such tactics. The lawsuit stemmed from an arena promotion at the Lakers' home arena, the Staples Center. Specifically, upon viewing scoreboard message inviting fans to text a message for potential display on the arena scoreboard, the plaintiff sent a message to the displayed number. The central issue in this case was whether the Los Angeles Lakers violated the Telephone Consumer Protection Act (TCPA) by sending a confirmatory text message to plaintiff Emanuel after receiving the plaintiff's initial text message. As noted in the case, the TCPA exists to curtail the spread of nuisance phone calls; when determining whether such phone calls do indeed constitute nuisance calls, courts are encouraged to use common sense. Recently, the Federal Communications Commission (FCC) extended the TCPA to also include text messaging, holding that marketers must obtain express written consent before sending text messages to consumers. At issue in this particular context was the confirmatory text message sent by the Lakers to the plaintiff. The court ruled that common sense would indicate that Emanuel's original text message qualified as consent to receive a confirmatory message from the Lakers. Further, the confirmatory message explained that not all messages appear on the scoreboard; the court reasoned that content of the Lakers' confirmatory text could be deemed potentially useful and relevant for the plaintiff, as it merely clarified the fact that he cannot expect with certainty that his message would be displayed. Therefore, the Lakers' motion to dismiss was granted.

Sport organizations are turning to social media and mobile marketing strategies with increasing frequency. Given the pervasiveness of these methods in the sport industry, the protection gleaned from the Emanuel case can give sport practitioners some peace of mind in their marketing efforts, particularly as it relates to compliance with the TCPA. While this case granted some leeway to the organizations, the aforementioned cases and decisions did not. Therefore, it is critical for sport practitioners to remain current on the legal guidelines underlying their social media and mobile marketing efforts.

Implications for Sport Practitioners

Given the prominence of social media and its emergence as a tool for sport practitioners as well as the legal woes befalling many organizations in recent years, it is evident that sport organizations would be well-served to have comprehensive social media policies in place to serve as a guide for its use and implementation, particularly by its own employees. The preceding discussion extends recent decisions to sport industry scenarios involving teams, team executives, sport marketing firms, and university athletic department personnel. However, in reality, all sport practitioners must take warning given social media's prominence in the modern day sport landscape. Failure to have well-written and well-publicized social media policies in place may result in legal pitfalls similar to those depicted in the preceding discussion.

Awareness of the current social media legal environment is critical, as the outcomes of recent cases contain serious implications for sport practitioners. Numerous sport industry contexts run parallel to those depicted in recent cases and administrative decisions. For practitioners in these and other contexts, failure to keep abreast of legal happenings on a continuous basis has the potential to prove costly as they run the risk of repeating the same actions that have proven detrimental in recent decisions.

References

Bland et. al. v. Roberts, 730 F. 3d 368 (4th Cir. 2013).

Brenner, J. (2013, December 31). Pew internet: Social networking (full detail). Pew Internet. Retrieved from http://pewinternet.org/ Commentary/2012/March/Pew-Internet-Social-Networking-full-detail.aspx

Duggan, M., & Smith, A. (2013, December 30). Social media update 2013. Pew Research Center. Retrieved from http://pewinternet.org/~/media// Files/Reports/2013/Social%20Networking%202013_PDF.pdf

Emanuel v. Los Angeles Lakers, Inc., 12-9936, 2013 WL 1719035 (C.D. Ca. Apr. 18, 2013).

Eagle v. Morgan et. al., No. 11-4303, 2011 U.S. Dist. LEXIS 34220 (E.D. Pa., Mar. 12, 2013).

Keller, T. (2013, April 29). The rise of mobile in sports marketing. Concordia University Saint Paul Blog. Retrieved from http://online.csp. edu/blog/business/the-rise-of-mobile-in-sports-marketing

PhoneDog v. Kravitz, No. C-11-03474 MEJ, 2011 U.S. Dist. 129299 (N.D. Cal., Nov. 8, 2011).

Spanberg, C. (2012, November 26). Connecting with consumers. Street & Smith's Sports Business Journal, 15(32), 29.

Wallace, L., Wilson, J., & Miloch, K. (2011). Sporting Facebook: A content analysis of NCAA organizational sport pages and Big 12 Conference Athletic Department pages. International Journal of Sport Communication, 4, 422-444.

DISCLAIMER: Inquiries regarding this feature may be directed to series co-editors Steve McKelvey at mckelvey@ isenberg.umass.edu and John Grady at jgrady@mailbox.sc.edu. McKelvey is an associate professor and graduate program director in the Mark H. McCormack Department of Sport Management at the University of Massachusetts Amherst. Grady is an associate professor in the Department of Sport & Entertainment Management at the University of South Carolina.

The materials in this column have been prepared for informational and educational purposes only, and should in no way be considered legal advice. Readers should not act or reply upon these materials without first consulting an attorney. By providing these materials it is not the intent of the authors or editors to enter into an attorney-client relationship with the reader. This is not a solicitation for business. If you choose to contact the authors or editors through email, please do not provide any confidential information.

Alfonso Cornish is an attorney and first-year doctoral student at the University of Massachusetts Amherst. He earned his J.D. from the University of Wisconsin Law School and currently represents sports and entertainment figures. His research interests include organizational leadership, empowerment, corporate ethics, and legal issues in sports organizations.

Ben Larkin is a first-year doctoral student at the University of Massachusetts Amherst. He earned his M.S. in Sport Management from the Southern New Hampshire University. His research interests include sport marketing and sport consumer behavior, with a particular emphasis on sport media consumption.