[authors: Martha J. Zackin, Martha Zackin, and Brandon T. Willenberg]
In PhoneDog v. Kravitz, an employer and former employee battled over who owns a company-sponsored Twitter account (read about it here and here). Now, LinkedIn joins Twitter, as it tries to claim title to the LinkedIn account of a former employee.
In Eagle v. Edcomm, pending in the United States District Court for the District of Pennsylvania, the plaintiff (Linda Eagle), former CEO and founder of the defendant Edcomm, sued Edcomm for taking over her LinkedIn account. Specifically, Ms. Eagle alleged that Edcomm violated the Computer Fraud and Abuse Act (“CFAA”) and trademark laws when, after terminating her employment, it changed the password on Ms. Eagle’s account and replaced her information with information about her successor. It left in place information relating to Ms. Eagle’s honors and awards, recommendations and connections.
The CFAA is a federal anti-hacking statute which, Ms. Eagle claimed, Edcomm violated by “hacking” into her account to change the password, causing harm to her reputation and denying her potential business opportunities. Rejecting Ms. Eagle’s claim, the Court found that Ms. Eagle had given the company legitimate access to the account’s password when she shared the password with her assistant, who helped Ms. Eagle manager her LinkedIn account. Further, the Court found that the damages Ms. Eagle claimed were not the kind of damages that trigger legal liability under the CFAA.
The Court also dismissed Ms. Eagle’s claims under trademark law because she could not show that the company created confusion or the likelihood of confusion by changing the name and photo on the LinkedIn account. State law claims for conversion (regarding a company laptop) and misappropriation (regarding ownership of the LinkedIn account) are still alive. Trial is set for October 16, 2012, according to court records.
Social media law across the United States is still developing and evolving. And as we have written before, employers must be proactive in establishing and implementing clear social media policies, which set clear rules about who actually owns the company-related LinkedIn, Facebook or Twitter account and what happens to these accounts when the employee leaves the company. Policies should also clearly prohibit employees from posting the employer’s confidential or trade secret information, which may include customer identities and information. The old adage, an ounce of prevention is worth a pound of cure, applies. Don’t delay -- employers should take the time to review, prepare, revise (as appropriate), and implement appropriate social media policies, under the direction of experienced employment counsel.