Monday, April 4, 2011

Impersonating an employee: New and exciting ways businesses are getting into trouble via social media

A recent case out of Chicago, Illinois (Maremont v. Susan Fredman Design Group, 2011 WL 902444, 3-15-2011) exemplifies how businesses are struggling to adapt to the legal issues presented through their use of social media.  While on its face, the issue at the heart of this case may seem obvious, in practice there can be many very difficult your company ready?

In Maremont, Jill Maremont, an employee of SFDG was an active participant in social media, blogging and posting in her own name, on topics directly related to her employment at SFDG.  Through her efforts, Maremont developed a sizable following and those posts inured to the benefit of SFDG.  She accessed social media sites through SFDG computers, which stored her passwords.

In September of 2009, Maremont was in an accident which left her incapacitated for an extended period of time, in her absence, employees of SFDG made numerous social media postings promoting SFDG on her behalf, without her permission.  Upon discovering this activity, Maremont requested that SFDG refrain from using her accounts.  SFDG continued these posts despite Maremont's requests.   Maremont brought claims alleging violation of the Lanham Act (false endoresment); Illinois' Right to Publicity Act, and Common Law Right to Privacy claims. Her claims under the Lanham Act and Illinois' Right to Privacy Act, have survived Summary Judgment, and the opinion gives at least some indication that a more specifically pled privacy claim may also have had some traction.

The ultimate resolution of these claims is still to be determined, however, their advancement should give pause to companies whose employees use their own followings on social media to promote company business activities.  Could you be exposed to similar claims? Would you loose important aspects of your businesses' promotional strategy if certain employees left? How do you protect your company?

While each situation is different, a strong, and business specific, social media policy can help provide you protection.  In those instances where substantial company followings and promotion are developed through social media, it is especially important that your policy make clear who owns the accounts being used, who has a right to post on the accounts, and that your company has the right control the accounts, regardless of the content input of employees.  These protections can help avoid expensive legal battles if a dispute arises.  There are also ways in which policies can make explicitly clear that intellectual property created related to the business of your company during the course of employment is owned by the company.  Again, avoiding problems, before they arise, is one of the most important functions of a properly drafted social media policy. 

Up next: consideration of the CAN-SPAM Act's application to social media. Can Facebook, Twitter, and Linked-In postings be "spam" under the definition of the Act?

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