Fenwick Employment Brief: Employee Social Media Account Ownership Still Uncertain

Who owns an employee's social media account when it is used to promote the employer's business? This is a hot-button topic and developing area of employment law, and a Pennsylvania federal court recently shed more light on this issue.

In Eagle v. Morgan, Linda Eagle was an executive at Edcomm, Inc. The company encouraged employees to create LinkedIn accounts and to use them to promote the business. Eagle created an account using her Edcomm email address and gave her password to a few Edcomm employees to enable them to update her account and respond to inquiries. Edcomm then terminated Eagle. Thereafter, Edcomm accessed Eagle's account, changed her password, and replaced most (but not all) of her information with that of the new interim CEO. Eagle could not access her account, and Google and LinkedIn searches for "Linda Eagle" directed the user to Eagle's prior LinkedIn account bearing the interim CEO's name and partial information. Less than a month after her termination, LinkedIn restored account access to Eagle.

Eagle sued Edcomm and related parties for invasion of privacy, conversion, and other claims. The court found Edcomm liable for unauthorized use of name, invasion of privacy, and misappropriation of publicity, but awarded no damages. According to the court, Eagle did not prove the fact of damages with reasonable certainty: she did not point to any actual or potential lost business, and the method she used to calculate damages was likewise speculative and hypothetical.

Social media account ownership is an unsettled area of the law, and more courts will need to weigh in on the issue before employees can gain greater clarity about ownership rights. A similar case involving an ownership dispute over a Twitter account (PhoneDog, LLC v. Kravitz) settled before the court could address the merits. In the meantime, employers that wish to have control over and ownership of social media accounts maintained by their employees should establish such an understanding and agreement with the employee through a clear written policy or agreement, and consult legal counsel about the interplay between such writings and applicable law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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