- We can work it out. Actress Katherine Heigl and the Duane Reade chain of drugstores have settled a $6 million federal suit filed by Heigl this past April in the U.S. District Court for the Southern District of New York. The suit centered on Duane Reade’s March 2014 tweet, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore,” which linked to a paparazzi photo of Heigl carrying a Duane Reade shopping bag. The actress had alleged a violation of Section 43(a) of the Lanham Act, which prohibits false advertising, and of Section 50 of the New York Civil Rights Law, which prohibits the use for advertising or trade of a living person’s name, portrait, or picture without having first obtained that person’s written consent. As part of the settlement, Duane Reade has reportedly agreed to make a contribution to the Jason Debus Heigl Foundation.
- With a little help from my friends. Facebook is reportedly testing a new mobile application feature that permits users to search by keyword through old posts from their friends. This innovation—much like the search functionality in cloud-based mobile mail applications—could make it easier for people to revisit otherwise difficult-to-find content, content that may have been “pushed off the page” in light of the chronological structure of social media news feeds.
- All together now. What if hundreds of thousands of people all agreed to tweet at the same time? It happens! Although countless folks flock to social media sites on or around New Year’s Eve, according to Twitter’s Senior Director of Site Reliability Engineering, most users in Japan “tweet-in the new year” precisely at midnight local time—for example, take January 1, 2012, when Twitter “ground to a halt” as users in Japan tweeted over 16,000 times per second. Wired provides an interesting take on Twitter’s “stress testing” framework, aimed at handling incredibly high-volume traffic like this.
When an employee uses a social media account to promote his or her company, who keeps that account when the employee leaves? Perhaps more importantly, who keeps the friends, followers and connections associated with that account? Three lawsuits highlight the challenges an employer may face in seeking to gain control of work-related social media accounts maintained by current or former employees.
We start with Eagle v. Edcomm, a federal case out of Pennsylvania involving a dispute over an ex-employee’s LinkedIn account and related connections. The plaintiff, Dr. Linda Eagle, was a co-founder of the defendant company, Edcomm. She established a LinkedIn account while at Edcomm, using the account to promote the company and to build her network. Edcomm personnel had access to her LinkedIn password and helped to maintain the account. Following termination of her employment, Edcomm allegedly changed Dr. Eagle’s LinkedIn password and her account profile; the new profile displayed the new interim CEO’s name and photograph instead of Dr. Eagle’s. (Apparently, “individuals searching for Dr. Eagle were routed to a LinkedIn page featuring [the new CEO]’s name and photograph, but Dr. Eagle’s honors and awards, recommendations, and connections.”) Both parties raced to the courthouse, filing lawsuits against each other over the LinkedIn account and other disputes. Although a final ruling on all the issues has not yet been made, the court has issued two decisions.
In the earlier of the two decisions, the court granted Dr. Eagle’s motion to dismiss Edcomm’s trade secret misappropriation claim, concluding that the LinkedIn connections were not a trade secret because they are “either generally known in the wider business community or capable of being easily derived from public information.”
The most recent decision, however, was largely a win for Edcomm. The court granted Edcomm’s motion for summary judgment on Dr. Eagle’s Computer Fraud and Abuse Act (CFAA) and Lanham Act claims. Regarding her CFAA claims, the court concluded that the damages Dr. Eagle claimed she had suffered—related to harm to reputation, goodwill and business opportunities—were insufficient to satisfy the “loss” element of a CFAA claim, which requires some relation to “the impairment or damage to a computer or computer system.” In rejecting Dr. Eagle’s claim that Edcomm violated the Lanham Act by posting the new CEO’s name and picture on Dr. Eagle’s LinkedIn account, the court found that Dr. Eagle could not demonstrate Edcomm’s actions caused a “likelihood of confusion,” as required by the Act.
In a federal case out of Illinois, Maremont v. Susan Fredman Design Group LTD, the employee, Jill Maremont, was seriously injured in a car accident and had to spend several months rehabilitating away from work. While recovering, Ms. Maremont’s employer—Susan Fredman Design Group—posted and tweeted promotional messages on Ms. Maremont’s private Facebook and Twitter accounts, where she had developed a large following as a well-known interior designer. The posts and tweets continued after Ms. Maremont had asked her employer to stop, so Ms. Maremont changed her passwords. Following the password changes, Ms. Maremont alleged that her employer started treating her poorly in order to force her to resign. Ms. Maremont then brought claims under the Lanham Act, Illinois’ Right of Publicity Act, and the common law right to privacy. Although the case is still pending, the court issued a decision refusing to dismiss Ms. Maremont’s Lanham Act and Right of Publicity Act claims. The court, however, dismissed her common law right to privacy claims, holding that she had failed to demonstrate that her employer’s “intrusion into her personal ‘digital life’ is actionable under the common law theory of unreasonable intrusion upon the seclusion of another,” and that she failed to allege a false light claim because she did not allege that her employer “acted with actual malice.”
A recently-settled California case, PhoneDog LLC v. Noah Kravitz, which we have written about previously, involved a similar dispute over a former employee’s Twitter account. Unlike the LinkedIn account at issue in the Edcomm case, the Twitter account in PhoneDog was apparently created by the employer, not the employee; the Twitter “handle” identifying the account, however, included both the employer’s name and the employee’s name: @PhoneDog_Noah. According to PhoneDog’s complaint, the account attracted approximately 17,000 Twitter followers. Mr. Kravitz—who after leaving PhoneDog eventually began working for one of PhoneDog’s competitors—kept the Twitter account but removed PhoneDog’s name, changing the handle to @noahkravitz. PhoneDog sued Mr. Kravitz, alleging that Mr. Kravitz wrongfully used the Twitter account to compete unfairly against PhoneDog. Like Edcomm, PhoneDog alleged misappropriation of trade secrets, although PhoneDog appears to have viewed the account log-in information rather than the actual followers as the relevant trade secret information. As noted above, the parties have settled this case, so we will not learn how the court would have ultimately ruled; nevertheless, this case and the other pending suits discussed above, offer important lessons to employers. While the terms of the settlement are confidential, news reports have indicated that the agreement does allow Mr. Kravitz to keep his Twitter account and followers.
These cases have received media attention, and the two pending cases—Eagle and Maremont—will continue to be closely watched by the legal community to see how courts define ownership interests in employee social media accounts. Employers, however, should not wait on the rulings in these pending cases to take steps to protect their interests in their social media accounts. All three of these cases illustrate the importance of creating clear policies regarding the treatment of business-related social media accounts, and making sure that employees are aware of these policies. Other measures an employer can take include: Being certain to control the passwords of the company’s own social media accounts and making sure that the name of the account does not include an individual employee’s name. At the same time, employers need to be mindful of new laws in California restricting an employer’s ability to gain access to its employees’ personal social media accounts.
In light of these developments, it will be particularly important to maintain a clear distinction between company and personal social media accounts.