LinkedIn is a social media site catering exclusively to professionals with 200 million registered users in 200 countries. For many businesses, marketing via social media is a critical component to success. Employees use LinkedIn to promote themselves, their employers, or both at the same time and to interact with current or prospective customers.
LinkedIn policies state that the agreement to create an account is between LinkedIn and the individual who sets up the account. Many employers, however, maintain policies stating that all content created by employees in the course of business belong to the employer. Thus, one evolving legal issue is whether the employer or employee owns the content created on LinkedIn, such as the contacts (a.k.a. customer lists), particularly when the employee leaves that employer. A Philadelphia federal court recently addressed this issue in Eagle v. Morgan, No. 11-4303, 2013 WL 943350 (E.D. Pa. Mar. 12, 2013).
Dr. Linda Eagle is a big name in the banking industry. She co-founded a bank education company, Edcomm, Inc. She created a LinkedIn account to extensively market herself and her company to over 4,000 contacts. Edcomm urged, but did not require, its employees to create accounts and develop online content. Some Edcomm employees, including Dr. Eagle, paid for premium LinkedIn accounts at their own expense. Eagle shared her password with other employees so that they would be able to update her account and respond to invitations. Although one executive informally opined to Eagle and others that the company owned employees’ LinkedIn accounts and contacts, Edcomm had no formal policy regarding ownership of social media accounts.
In October 2010, another company, SISCOM, acquired Edcomm, and Eagle stayed on as an executive. However, less than a year later, in June 2011, the new owner fired her and others. Around the time the company publicly announced Eagle’s departure, Edcomm employees accessed Eagle’s account and changed her password to lock her out of the account. They changed the name, picture, and biography on the page to that of Sandi Morgan, the new CEO of Edcomm, but kept some of Eagle’s honors and awards. All of Eagle’s 4,000 contacts would see Morgan’s profile in Eagle’s place. All searches for “Linda Eagle” on LinkedIn showed up with Sandi Morgan’s photo and bio.
Eagle protested to LinkedIn, who sided with her and gave her access to the account about a month after her departure from Edcomm. She also lost her messages for about three months. Eagle sued Edcomm and its executives for half a million dollars in federal court in Philadelphia alleging misappropriation of her identity and identity theft among other things. Edcomm countersued for misappropriation and unfair competition, claiming that the LinkedIn profile belonged to the company, not Eagle.
In a March 12, 2013 ruling, Senior District Judge Ronald Buckwalter issued a self-described “mixed bag.” He found for Eagle on three counts of misappropriation of her identity or publicity, holding that she maintained an exclusive right to control the commercial value of her name. By locking Eagle out of her own LinkedIn account and altering the account to switch its identity to Sandi Morgan’s, Edcomm deprived her of the commercial benefit of her own name. Anyone searching for Eagle on LinkedIn, the court explained, “would unwaringly be put into contact with Edcomm despite the fact that Dr. Eagle was no longer affiliated with Edcomm and did not consent to Edcomm’s use of her name.” Judge Buckwalter rejected her identity theft claim, however, noting that while Edcomm’s lockout of her account was “perhaps unscrupulous,” it was “not so clearly an ‘unlawful purpose’” within the meaning of the Pennsylvania identity theft statute.
Judge Buckwalter rejected Edcomm’s counterclaims that it owned Eagle’s LinkedIn profile. Edcomm had no policy mandating employee use of LinkedIn, did not dictate the precise content of employees’ accounts, or pay for the accounts. LinkedIn’s user agreement expressly stated that the account is between LinkedIn and the individual user. While Edcomm claimed that Eagle built her contacts exclusively on Edcomm time and money, the trial judge noted that that Edcomm failed to present any evidence supporting such an allegation.
The “mixed bag” came when the district court declined to award her damages. Eagle proposed a novel formula with which to calculate lost profits, tying her sales per year into a “per contact” average and thereby calculating lost profits of $248,000 to $500,000. Noting that her best sales years occurred before LinkedIn existed, Judge Buckwalter rejected this damage theory, as it also “seemingly [had] no basis in general accounting principles.” Further, the judge found that Eagle could not name or document a single customer, deal, or transaction lost due to the lockout of her account.
Even though Eagle won her case (technically), the law on LinkedIn profile ownership remains unsettled. The Eagle ruling can be read in two ways. In one way, the ruling suggests that LinkedIn’s user agreement, along with each person’s rights to their own name and likeness, may trump an employer’s claim of ownership. But read another way, the ruling implies that it might have gone the other way had the employer implemented formal policies, controlled content, and reimbursed employees for their accounts.
Future cases are unlikely to assert a broad claim of ownership over an entire profile. More likely are narrower claims involving disputes over ownership of contact/customer lists developed during employment.
John F. Martin is a shareholder in the Washington, D.C. office of Ogletree Deakins.