A recent summary judgment ruling issued out of the Eastern
District of Pennsylvania, Eagle v. Morgan, et al., CIV-No.
11-4303, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012),
highlights the need for employers to have clear policies regarding
social media accounts established and used on the
employer's behalf. While plaintiff Dr. Eagle was
president of defendant Edcomm, a banking education company, she
created a LinkedIn account and used that account to promote
Edcomm's banking education services, foster her reputation
as a businesswoman, reconnect with family, friends, and colleagues,
and build social and professional relationships. Edcomm
contended that it had an unwritten informal policy of
"owning" the LinkedIn accounts of its former employees
after they left the company. Dr. Eagle was terminated and
subsequently denied access to her LinkedIn account by Edcomm, which
had accessed her account, changed her password and altered her
LinkedIn profile to display the company's new
president's name and photograph while retaining some
elements of Dr. Eagle's profile. Dr. Eagle ultimately
regained control of her LinkedIn account but nonetheless sued
Edcomm and its employees, alleging, among other things, violations
of the Computer Fraud and Abuse Act and the Lanham Act, and
invasion of privacy by misappropriation of her identity.
On October 4, 2012, the district court granted Edcomm's
motion for summary judgment to dismiss Dr. Eagle's federal
claims. Holding that a reasonable jury could not find
that Dr. Eagle had suffered a "legally cognizable loss or
damage in the brief period in which her LinkedIn Account was
accessed and controlled by Edcomm," the district dismissed her
CFAA claim. The district court concluded that Dr.
Eagle's claim of lost business opportunities and damage to
her reputation were "speculative" at best and "not
compensable under the CFAA," and that even if types of damages
were recoverable, she failed to present any evidence to quantify
these damages. The district court also dismissed Dr.
Eagle's claims under the Lanham Act, finding that she had
failed to produce any evidence of a likelihood of confusion to the
public by switching her name and photo with that of her successor.
However, the district court retained jurisdiction over Dr.
Eagle's remaining state law claims as well as
Edcomm's counterclaims (a conversion claim over a laptop
and a misappropriation claim that asserts that Edcomm was the
rightful owner of the LinkedIn account).
Given the rapidly evolving standards regarding employee/employer
use of social media websites for marketing and business development
(both for the employer's business and the
employee's reputation), employers should take a proactive
role in developing clear guidelines regarding the creation, control
and ownership of business-related social media accounts. Policies
stating, for example, that the company owns the social media site
can help employers avoid disputes with departing
employees. In addition, during exit interviews with
departing employees, employers should consider inquiring generally
about the employee's social networking activities as they
relate to his or her employment. Ask employees whether
any client or customer information exists on their social
networking accounts. If it does, request that this
information be removed immediately. If an employer learns
of an employee's social networking activity that it
believes violates a non-solicitation or other restrictive covenant,
consider sending a cease and desist notice, including a specific
request for the removal of any and all offending
information. Finally, be prepared to adapt to changing
norms, laws, rules and regulations affecting or regulating the use
of social media sites.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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