A Chicago area design firm was sued by a former marketing director for accessing her personal accounts and posting on her accounts during her medical leave. A federal court in Chicago ruled this month that it will allow the former employee’s case to go to trial. Employers should be very careful in accessing an employee’s social media accounts and should be extremely wary in posting on those accounts. Unless you can be sure that the account you are going to access is the company’s account, tread lightly.
Jill Maremont was a marketing director for a Chicago area interior design firm, Susan Fredman Design Group (SFDG). As part of SFDG’s social media marketing campaign, Maremont managed a blog, a Twitter account and a Facebook account for SFDG. She also had her own personal Facebook page and Twitter accounts though she did not give access to these accounts to her employer.
In September, 2009, Maremont was seriously injured when she was hit by a car. While on medical leave, she learned that her employer posted entries on her Facebook page promoting SFDG. She also learned that SFDG has posted tweets on her twitter account promoting SFDG. In one instance, SFDG posted an update to alert Maremont’s followers of her accident. After subsequently resigning at the urging of her physician, she sued SFDG. The case is: Maremont v. Susan Fredman Design Grp., N.D. Ill., No. 10 C 7811, 12/7/11.
Among her claims was a Lanham Act claim for false endorsement. The Court ruled that this claim could go to trial because it held that Maremont had a “protected, commercial interest in her name and identity within the Chicago design community.” Based on that finding, and its conclusion that SFDG had improperly accessed her account and promoted SFDG without Maremont’s permission, the Court allowed the claim to proceed.
Maremont also sued for a violation of the Stored Communications Act. Maremont argued that the use of her personal Twitter password to access her personal Twitter account to send out tweets (and similarly accessing her personal Facebook page) violated the SCA. Specifically, Maremont argued that the accessing and use of these personal accounts was an intentional act to access her accounts without permission which is prohibited by the SCA. The Court found that given that it was undisputed that SFDG accessed her accounts, it was permitting the case to proceed to trial.
Employers should have clear policies about which Twitter and Facebook accounts are the property of the employer and which are the property of its employees. While SFDG may well have had good intentions initially in accessing the accounts, its failure to get Maremont’s permission before proceeding was its undoing. Going forward, be certain of the ownership of an account before you access it.