Friday, February 24, 2012

Lessons in Employee Social Media Accounts

Twitter, Facebook, and other social media accounts are rapidly becoming an important part of business online identity. Through these accounts a business can advertise for free, engage prospective clients, and communicate with customers. However, as two recent cases stress, businesses need to understand the implications of employees creating and using social media accounts for the benefit of the business.

Maremont v Susan Fredman Design Group involves an employee bringing personal social media accounts to a business. Maremont was hired by Fredman to direct its marketing, public relations and ecommerce. In this capacity Maremont used her personal Facebook and Twitter accounts to promote Fredman’s business in addition to developing Facebook and Twitter accounts specific to Fredman (see note at end of post.) When Maremont was severely injured in a car crash, Fredman accessed her personal Facebook and Twitter accounts and continued to use them to promote their business. As a result of this use, Maremont claimed violation of the Lanham Act (false association under 15 U.S.C. § 1125(a)), the Electronic Communications Privacy Act, Illinois’s Right of Publicity Act, and common law right of privacy.

While Fredman remains at the pre-trial phase, a number of lessons may still be derived from it:
First, employers cannot intentionally access an employee’s personal social media accounts without authorization (even when that employee is to use those accounts as part of their employment.) Further, the employer should receive authorization to use those accounts and the extent of that authorization should be clearly laid out on paper. Doing this may help an employer avoid liability under the Electronic Communications Privacy Act.

Second, when an employee brings their personal social media accounts to a business the personal nature of those accounts, in many cases, does not change even though the accounts may be used to promote their employer’s business. Use of those accounts by an employer beyond authorization may constitute a false association of the business with the employee (Lanham) or violate state specific publicity statutes or common law privacy rights.

PhoneDog v. Kravitz involves an employee creating social media accounts on behalf of the employer. Noah Kravitz was employed by PhoneDog to promote the company through social media and was required to create the Twitter account @PhoneDog__Noah. When Kravitz left PhoneDog he changed the name of the Twitter account to @noahkravitz and continued to use the account for work and personal matters. PhoneDog sued Kravitz on the basis that the password to the Twitter account was confidential information, leading to a number of related claims.

PhoneDog is a closely watched case with potential ramifications on Twitter account ownership. However, to me, PhoneDog presents one simple lesson: the employer should create the social media account and the password for the employee. The password should be immediately changed when the employee leaves the company. If Phonedog had followed these simple steps this case would not exist.

Note: the complaint and various motions submitted in Fredman appear to indicate that Maremont used her personal accounts to promote Fredman in that her "Tweets and Posts relate to her work in a commercial context, namely, as a professional interior designer and employee of SFDG." Even if this were not the case, the lessons remain valuable.

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