Christine Wilkinson, Esq.
Have you ever wondered ? Does anyone actually own a LinkedIn account? My guess is you probably have not spent a lot of time pondering that question, at least I will admit that I had not. However, based on recent events, you probably should. In fact, the question of whether an employee or an employer owns or should own a LinkedIn account was recently answered by a federal court in Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013) where the court held that the employee owns the account.
The facts in the Eagle case are as follows. Linda Eagle was the president and founder of Edcomm, Inc. During her time at Edcomm, Ms. Eagle registered and used a LinkedIn account. For unknown reasons, Eagle asked other Edcomm employees to help manage the account, giving them her password and log-in information.
Edcomm was eventually purchased by another company and Ms. Eagle was promptly released from employment. After her termination, Edcomm employees changed Eagle?s LinkedIn password, effectively locking her out of the account. During the weeks in which Eagle was locked out, Edcomm replaced her name and photo with her successor?s information, but left Ms. Eagle?s honors and awards on the profile, attributing them to her successor. The result was that people searching for ?Linda Eagle? would successfully locate her page and her custom URL, but the page contained another person?s information.
To suggest that Ms. Eagle was unhappy with these events would be to put it mildly. Ms. Eagle sued Edcomm, outlining thirteen separate causes of action that her former employer violated. These included: the Computer Fraud and Abuse Act (“CFAA”); the Lanham Act (which prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising); unauthorized use of her name; invasion of privacy and misappropriation of identity; misappropriation of publicity; identity theft; conversion; tortious interference with a contract; civil conspiracy; and aiding and abetting. Ultimately, Ms. Eagle prevailed when the federal court ruled in her favor on a variety of claims including unauthorized use of name, invasion of privacy, and misappropriation of publicity. In so doing, the court noted that Ms. Eagle had a privacy interest in her name, picture, and resume. Notably, the court found that Ms. Eagle?s name held intrinsic value in that it ?had the benefit of reputation, prestige, and commercial value within the banking education industry.? Luckily for Edcomm, Eagle?s victory was a bit hollow in that the court held she suffered no economic losses as a result of the company?s actions.
Regardless, the court?s holding remains noteworthy and important to employers. First, employers would be wise to put in place social media policies that clearly define ownership of accounts such as LinkedIn (and others). If Edcomm had such a policy in place, it might have resolved, at least some of these issues, at a much earlier stage and as a result avoided many of these issues to say nothing of the costs. Second, it is notable that the most viable claims presented were the state law claims for invasion of privacy and misappropriation. Employer policies should incorporate the law of the state or states in which they operate to help guard against these types of claims. Lawyers often state or express the significant importance of updating and editing employee handbooks at least annually — employment laws change and so do employer cultures. Recognize that the handbooks require review and that this type of an ?annual review? is critical.
If your company allows or enables employees to market your company through social media, consider entering into an agreement (contract) through which employees acknowledge company ownership of company accounts and that expressly requires employees to surrender access to accounts following termination of employment.