Ownership of employees' social-media accounts was my pick for "hottest topic facing employers in the next 12 months" when I spoke to the Labor & Employment Section of the Delaware Bar Association back in April. A decision issued by the Eastern District of Pennsylvania last week on this issue is proving me right. And, if I say so myself, it is nice to be right every once in a rare while.
The plaintiff, Dr. Linda Eagle, co-founded Defendant EdComm, Inc., in 1987. The company was purchased in 2010 and Dr. Eagle was terminate shortly thereafter. Prior to the purchase, EdComm's CEO encouraged all EdComm employees to create a profile on LinkedIn listing EdCommas their current employer.
Dr. Eagle, with the help of a designated EdComm employee, followed the suggestion and set up a LinkedIn account and profile. The company had a policy that required employees to use their company e-mail address in their LinkedIn profile and to set up their profiles using a company-created template. Once the account had been created, EdComm kept a copy of the account's password on file.
It was the company's general policy that, when an employee separated from EdComm, the company "would effectively 'own' the LinkedIn account and could 'mine' the information and incoming traffic, so long as it did not steal that former employee's identity."
The same day she was fired, Dr. Eagle attempted to log into her LinkedIn account but was not able to do so. The next day, the company announced its new executive management team, including Dr. Eagle's replacement. Using Dr. Eagle's password, EdComm accessed her account and changed the password, thereby precluding her from future access. It also changed the account profile to display the successor's name and photograph. Dr. Eagle's honors, awards, recommendations, and connections, however, were unchanged.
Dr. Eagle filed suit asserted numerous state and federal statutory and common-law causes of action. Thereafter, she was able to regain access to her account, although she was not able to retrieve messages sent to and from the account for some additional period of time. The company asserted various counter-claims, which Dr. Eagle moved to dismiss. In December, the court denied the motion to dismiss, finding that the "connections" had value for the company.
The parties completed discovery and Defendant moved for summary judgment. In an opinion dated October 4, 2012, Judge Buckwalter dismissed Dr. Eagle's federal claims but declined to dismiss her state-law claims. With just two weeks remaining before trial and Defendant's several state-law claims having survived the earlier motion to dismiss, the court ordered the case to proceed.
Dr. Eagle was acting pro se and it showed. Both of her federal claims--brought under the Computer Fraud and Abuse Act and the Lanham Act--were not litigated in a way that they could have survived summary judgment. For more specifics about the dismissal of these claims, see Venkat Balasubramani's post on Eric Goldman's Technology and Marketing Blog.
Whether either claim would have stood a more reasonable chance had she been represented by counsel is anyone's guess but I suspect it's at least in the realm of the possible. But she wasn't. And, as a result, the court's decision is likely to have limited impact on similar disputes over the ownership of social-media accounts.
So what's the real lesson to be learned from this case, if it's not about the application of the CFAA to LinkedIn accounts? I have to agree with Venkat on this one--employers who encourage (or require) employees to create or use a social-media account for work should get the ownership rights in writing before they find themselves litigating against a pro se plaintiff with two weeks to go before a full trial on the merits.
Eagle v. Morgan, No. 11-4303 (E.D. Pa. Oct. 4, 2012).
H/T to Francis Pileggi, who writes the Delaware Corporate and Commercial Litigation Blog.