I’ve previously written on this subject in the context of a former employee’s use of LinkedIn information to violate a non-compete agreement. This latest variation on the personal/business overlap theme comes out of the Eastern District of Pennsylvania. In this case, a senior executive of a consulting company for the banking industry created a LinkedIn account using her company e-mail address. The company did not require its managers to operate a LinkedIn account and did not pay for LinkedIn premium accounts if the employee chose to upgrade. Moreover, the company had no policy in place with regard to use of social media accounts, and no standard practice with respect to the placement of business information on social media sites.
The employee/executive used her LinkedIn account extensively for business. She actually shared her LinkedIn password with other company employees, who then updated her account and also responded to business inquiries coming into the executive's site.
You can see how this co-mingling of business and personal information already appears problematic. When the executive was fired by the company, company employees immediately went into her LinkedIn account and changed her password, and then updated her LinkedIn account with the name of the employee’s successor.
Big red flag here – unless the company had a clear ownership claim to the LinkedIn account (it didn’t), doing something like this is an invitation to get sued.
Further inflaming the situation, the company did not change the LinkedIn homepage’s URL to remove the former executive’s name and also failed to remove her honors and awards listings. The company had full control of the account for approximately two weeks. After complaints by the executive, LinkedIn staff forcibly took over the account and returned access to the executive.
The effect of the company’s action was such that anyone searching for the executive’s name would be directed to the LinkedIn page of her corporate successor. There was no notice to someone searching for the executive that she no longer worked at the company. The clear implication, of course, is that the executive’s reputation was something that the company wished to take advantage of, even though she no longer worked there.
The executive sued for unauthorized use of name and likeness, invasion of privacy by misappropriation of identity, and misappropriation of publicity, as well as identity theft, conversion, tortious interference with LinkedIn’s contract, civil conspiracy, and civil aiding and abetting. She also alleged federal claims under the Computer Fraud and Abuse Act and Lanham Act for misuse of her likeness and interfering with her social media site.
Not surprisingly, the court had little difficulty finding against the company on the unauthorized use of the executive’s name, misappropriation of identity, and misappropriation of publicity. The company sought to exploit the executive’s reputation by keeping her name associated with the company after it terminated her, and took steps to screen that fact by diverting traffic to the successor’s LinkedIn account. Unfortunately, the executive was not able to prove any compensatory or punitive damages resulting from the company’s conduct. The court determined that there was insufficient evidence to support claims of lost business, and the expert witness offered on damages calculations could not point to a single piece of business that was diverted as a result of the company’s conduct.
A couple of lessons here. Don’t think that you can run willy-nilly through somebody’s social media account just because it has some business information located in it. If a company doesn’t have the rights to social media accounts, then those accounts are private property. Moreover, it wouldn’t be a bad idea for companies to start thinking about their social media policies in terms of ownership of this kind of information, and its use after termination. A policy or agreement stating that the employee understands that business information located on a social media site cannot be used to compete with the company might have solved much of the problem here. Finally, even when there are clear violations, damages are notoriously difficult to establish in these cases. But that doesn't mean that the employer should invite litigation by not taking preemptive steps.