WHO OWNS SOCIAL MEDIA CONTENT . . . EMPLOYER OR EMPLOYEE?

Many companies encourage, or in some cases even require, employees, to use social media to further their business objectives.  Employees use LinkedIn, Twitter, and Facebook to network, build relationships, contacts, and goodwill.  When the employee leaves the company, can the employee take all of this with her to her new position, possibly for a competing company, or can the employer force the employee to leave their social media account behind?  Just such a scenario is playing out in Pennsylvania in Eagle v. Morgan, 2011 U.S. Dist. LEXIS 147247.

            In this case, Linda Eagle holds a Ph.D. in communication and psychology and has extensive experience in financial services and training.  Along with others, she founded Edcomm, Inc. to provide such services.  Dr. Eagle has a prominent reputation in the field of banking training, and spent considerable time, effort and money in developing her reputation in the financial education industry.  Dr. Eagle established an account on LinkedIn, which she used to promote Edcomm’s banking education services, foster her reputation as a businesswoman and build social and professional relationships.

            Edcomm was eventually sold to SISCOM.  Dr. Eagle continued to work for Edcomm until she was involuntarily terminated by the company.  After Dr. Eagle was terminated, Edcomm allegedly used Dr. Eagle’s password to access her LinkedIn account.  They then changed the password so Dr. Eagle could no longer access the account.  Edcomm then allegedly changed the name on the account to that of its Chief Executive Officer but continued to feature Dr. Eagle’s honors, awards, recommendations, and connections on the account.  Edcomm then used Dr. Eagle’s business connections for its own benefit.

            Dr. Eagle filed suit alleging, among other things, a violation of the Computer Fraud and Abuse Act (“CFAA”), unauthorized use of name, invasion of privacy by misappropriation of identity, misappropriation of publicity and identity theft.  Edcomm filed a counterclaim stating that when Dr. Eagle worked for Edcomm they had a policy requiring employees to create and maintain LinkedIn accounts.  The employees were required to use their Edcomm e-mail address for LinkedIn accounts, utilize a specific form template created and approved by Edcomm, contain links to Edcomm’s website on LinkedIn accounts and utilize Edcomm’s template for replying to individuals through LinkedIn.  The counterclaim also alleged that for all departing employees, Edcomm requested and retrieved Edcomm related LinkedIn connections and content from the departing employee’s accounts.

            Dr. Eagle’s LinkedIn account was specifically the subject of the claim of misappropriation by Edcomm. Specifically, Edcomm argued that it was the rightful owner of the LinkedIn account connections.  Edcomm stated their personnel developed, maintained, and furthered the LinkedIn account for Edcomm’s sole benefit and use.  They allege that Dr. Eagle misappropriated the LinkedIn account connections for her own use.

Dr. Eagle asked that the Court dismiss this claim.  The Court noted that while Dr. Eagle argued that Edcomm failed to allege facts that would show it made a substantial investment of time, effort, and money into creating the LinkedIn account, Edcomm countered that its employees developed the accounts and maintained the connections, which are the route through which Edcomm contacts instructors and specific personnel within its clients.  The Court found that these conflicting allegations created an issue of fact, which required further discovery.  Therefore, the Court denied the motion to dismiss the misappropriation counterclaim.

In another case, PhoneDog, LLC v. Kravitz, PhoneDog is suing Kravitz for taking his Twitter account with him when he left PhoneDog. The allegation is that when Kravitz left PhoneDog, he changed his Twitter name from PhoneDog_Noah, to noahkravitz, and kept his 17,000 followers.  The company’s argument is that Twitter followers should be treated like a customer list, and are owned by PhoneDog.  A Magistrate Judge in the Northern District of California recently denied Kravitz’s motion to dismiss the suit.

            Although these cases are ongoing, we can see the lack of clarity and problems that can occur when determining the ownership of social media content contained within the accounts of departing employees.  As in many employer/employee controversies, these issues can often be avoided by the adoption and dissemination of social media policies within the company.  These policies should specifically address development, use and ownership of social media content.