Employer May Be Liable Under Federal Law for Posting Entries on Employee's Personal Facebook Page and Twitter Account - But What Exactly is Being Protected?

By Ted Olsen

Employers continue to grapple with the limits of their rights, if any, with regard to the personal social media of their employees.  In what could become a watershed case, the U.S. District Court for the Northern District of Illinois ruled that an employer that posted entries on an employee's personal Facebook page and posted "tweets" on her personal Twitter account, to promote its business, without her authorization, may be liable to the employee. The Court found the record evidence sufficient to support claims under the Lanham Act, 15 U.S.C. § 1125(a), and/or the Stored Communications Act, 18 U.S.C. § 2701 et seq., if the plaintiff is able to prove actual damages were caused by the unauthorized posts.  Maremont v. Susan Fredman Design Group, Ltd., Case No. 10 C 7811 (N.D. Ill. Dec. 7, 2011).  By denying the employer's summary judgment motion on these federal claims, the Court has apparently cleared the way for the parties to proceed to trial.

The plaintiff in Maremont was the Director of Marketing, Public Relations and E-commerce for a major interior design firm, and was compensated in part based on the firm's sales.  Hence, she had an incentive to promote the firm through various media, including social media.  As part of a social media marketing campaign, she created a blog for the employer on the firm's website.  She also opened a Facebook account for the firm.  Separately, the plaintiff had a personal Facebook page and a personal Twitter account, yet many of her posts promoted her firm and provided links to her firm's website and blog.  It is undisputed that the firm was aware of the plaintiff's promotion of the firm on her personal accounts.  However, she never gave authority to anyone at the firm to access her personal accounts.  She did not share her passwords on those accounts with the firm, and the folder in the firm's computer where she stored this information was locked.  The personal accounts permitted the plaintiff to develop her own personal following, which benefited her and the firm, but which would also benefit her if she moved to another place of employment (as she could then promote her new employer).

The employee missed more than eight months of work due to serious injuries in an accident.  During her absence, without authorization, the employer posted entries on her personal Facebook and at least 17 "tweets" on her personal Twitter account.  Some of the postings described the plaintiff's accident, reported on her hospitalization and leave of absence from work, and introduced a guest blogger who would substitute for her.  All of the firm's postings promoted the firm's business.  They continued after she gave written notice that the firm's posts on her accounts were unauthorized.

The plaintiff unsuccessfully returned to work on a part-time basis.  When she was ready to resume work full-time, about 18 months after the accident, the firm advised that her position had been filled.

The Court held that the evidence, interpreted most favorably for the plaintiff, supported a "false endorsement" claim 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 explained.  Such a claim, the Court elaborated, alleges the misuse of "a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product."  Basically, through her personal accounts, the plaintiff had commercialized her identity, and the employer may have misled consumers of her personal social media accounts about her sponsorship or approval of the employer's posts.  The Court made clear that the plaintiff, at trial, would be required to prove financial injury resulted from actual consumer reliance on the unauthorized posts.  Although the plaintiff had little or no evidence of such financial injury, the Court ruled that discovery might uncover such evidence.

The Court also found the record supported a claim under the Stored Communications Act, 18 U.S.C. § 2701(a).  That provision states that whoever "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility" and by doing so "obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system" violates the SCA.  Again, the evidence was sufficient to create a fact dispute about such a violation, and discovery might uncover evidence of actual damages, as required by the SCA, 18 U.S.C. § 2707(c). 

Notably, the Court granted the employer summary judgment on other claims, such as a claim for the "appropriation of one's name or likeness" under the Illinois' Right to Publicity Act.  The postings made clear that plaintiff was on a leave of absence and that a guest blogger would assume her role.  When the she returned to work briefly, her posts made clear that she had been absent and she thanked the guest bloggers for their efforts.  The Court concluded that, as a matter of law, the plaintiff's identity had not been appropriated by her employer.  This suggests that - under the remaining claims - what is being protected is not the employee's name, likeness or identity, but rather, the employee's right to deny access to her personal social media accounts.  The employer's mere unauthorized posts on her personal accounts wrongly implied to the plaintiff's consumers that she had given the firm permission to make the posts.