Employers and social media–boy oh boy, new problems seem to crop up daily. One of the more recent problems is ownership of social-media accounts. The decisions are mixed. For example, one court ordered an employee to return social-media log-in and password information to his employer. But when an employee files suit against his employer for using a social-media account that the employee claims for his own, the tables can turn.
The defendants were an interior-design firm and its owner. The plaintiff, Jill Maremont, worked for the firm as its Director of Marketing, Public Relations, and E-commerce. During her employment, Maremont became well known in the local design community and developed a substantial “personal” Twitter following.
As part of the firm’s social-media marketing campaign, Maremont created a blog, which was hosted on the firm’s website. She also created a Twitter account using the firm’s computer at the firm’s office. For reasons that were not explained by the court’s opinion, the parties apparently did not dispute that Maremont’s “personal Twitter and Facebook accounts were not for the [firm’s] benefit.” The parties also did not dispute that Maremont created a “personal following on Twitter and Facebook for her own economic benefit and also because, if she left her employment at [the firm], she would promote another employer with her Facebook and Twitter followers.”
Maremont filed a complaint alleging four counts: (a) Lanham Act; (b) Stored Communications Act; (c) a state statutory privacy claim; and (d) a state common-law privacy claim.
Subsequently, Maremont was seriously injured in a car accident. While hospitalized, she learned that the firm had updated Maremont’s Facebook page and that some of the posts promoted the firm. She also learned that the firm had accessed her Twitter account and used it to post promotional tweets. She asked the firm’s owner to refrain from posting updates to Maremont’s Twitter and Facebook accounts but the updates continued. Maremont and her husband later changed the password for her Twitter account. Maremont was able to return to work but only for a brief period of time. She left work and did not return.
The court looked first at the false-association or false-endorsement claim brought under the Lanham Act. False endorsement occurs when “a person’s identity is connected with a product or service in such a way that consumers are likely to be misled about that person’s sponsorship or approval of the product or service.” The court let this claim proceed.
The court then turned to the SCA claim. Maremont claimed that the defendants had accessed her personal Twitter account without her permission or authorization. The SCA provides for a cause of action for unauthorized, intentional access to communications held in electronic storage. The defendants admitted that they sent 17 tweets from Maremont’s account while she was hospitalized and not at work. Therefore, the court held that the SCA claim could proceed because there were disputed issues of fact as to whether the firm was authorized to access Maremont’s personal accounts.
The court dismissed the final two claims, finding that there could be no invasion of privacy for public information and that the defendant had not purported to be Maremont and, as a result, had not misappropriated Maremont’s image on the firm’s behalf.
Without a doubt, the key lesson from this case for employers is this: when you want to use social media for marketing or promotional purposes, do so with the same rules you would apply to any other business venture. Social-media accounts should be treated like any other company property. Implement rules for their use, just like you would for a company vehicle or credit card. Communicate those rules and enforce them when broken.
Maremont v. Susan Friedman Design Group, LTD, No. 10-07811 (N.D. Ill. Dec. 7, 2011) (PDF).
(H/T to Social Media Employment Law Blog).