Social Media and Employment: My Name, My Picture, My Info – Why Not My Account

By Carmel Mushin

If you think your connections on LinkedIn belong to you (as opposed to your employer) just because your name and picture appear on the account – think again! A recent decision out of a federal district court in Pennsylvania provides some support for employers who argue that contacts derived from social media accounts that were created using work emails and accessed for work purposes belong to the employer, not the employee. On the other hand, the case also seems implicitly to acknowledge that the account itself belongs to the employee who created it.

In Eagle v. Morgan, No. 11 Civ. 4303 (E.D. Pa. Oct. 4, 2012), the court rejected an employee’s claim that her former employer illegally accessed her LinkedIn account after she was terminated. The case involved an employee who created a LinkedIn account using her work email, in accordance with her employer’s policy. After she was terminated, her employer accessed the account with the help of a coworker who knew the password, changed the password, and altered the account so that the employee’s account showed her replacement’s name and picture with all the employee’s awards and recommendations.

The employee argued, among other things, that as a result of the employer’s actions she suffered damages under the Computer Fraud and Abuse Act (CFAA) and the Lanham Act because she could not log in to the account to communicate with critical contacts and to find work.

The court disagreed and dismissed both the CFA and Lanham Act claims. Noting that the employee regained access to her account within three weeks, the court concluded that the employee failed to present any evidence that she suffered a legally cognizable loss or damages when her former employer accessed and controlled her LinkedIn account, and that she therefore could not maintain claims under the CFAA. Likewise, the employee failed to meet her burden under the Lanham Act of showing that the employer’s use of her LinkedIn account caused a likelihood of between her and her replacement.

Nevertheless, in the end the employee in Eagle regained access to her account and there was no indication that it would be taken away from her. Moreover, while Eagle may lend some support to employers’ ownership claims over employee social mediaccounts or contacts, the facts of the case are likely to limits force. Employees should take away from this case the following lessons: 1) do not share social media passwords with anyone, especially coworkers; and 2) use a personal email account to set up social networking profiles, not a work email account.

Please visit the professional bio of Carmel Mushin at the Outten & Golden LLP website.