LEL Flash | Issue: February 2012

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Flash Co-Chairs: Elana Hollo, National Labor Relations Board | Katherine Huibonhoa, Paul Hastings LLP | Heather W. Martin, Balch & Bingham LLP | Amy F. Shulman, Broach & Stulberg LLP

Issue: February 2012

Technology Corner

Recent Cases Discuss Thorny Social Media Issues

Courts continue to wrestle with the thorny issues of how and to what extent traditional laws apply in the social media context.  While some courts seem to be embracing social media contacts and communications as protectable business interests and trade secrets, as the cases summarized below illustrate, whether information posted on social media is truly private remains an open question.  Employees and employers should expect the courts to continue to struggle with these issues, and should anticipate a wide range of results.

"Taking" of LinkedIn Account May Support Claims of Misappropriation, Conversion, and Unfair Competition

In Eagle v. Morgan (E.D. Pa. Dec. 22, 2011), an employer sued its former employee for alleged "theft" of her LinkedIn account connections and content.  In denying the employee's motion to dismiss, the court determined that the employee had "taken" the account connections after her termination, and that the connections maintained in the account were valuable to the company.  The court specifically highlighted the company's involvement in the development of the account, including that corporate personnel—not the employee alone—had developed and maintained most of the connections and content in the LinkedIn account, and that the company's policy required employees to use their company e-mail addresses and company templates when using LinkedIn. 

Twitter Account and Related Followers May Support Claims of Misappropriation and Conversion

In PhoneDog LLC v. Kravitz (N.D. Cal. Nov. 8, 2011), an employee developed and maintained a Twitter account using his own identity in furtherance of his job working for an interactive news web resource.  Over four years, he built up a large Twitter following.  The company asked the employee to relinquish use of the Twitter account when he was terminated.  Instead, the employee changed his Twitter password and account name and continued to use the account.  The company sued the employee for misappropriation of trade secrets, conversion, and interference with economic advantage.  The misappropriation and conversion claims survived a motion to dismiss.  The case will ultimately address whether a Twitter account and its followers are protectable trade secrets.

Social Networking Content May Not Be Private Even Under Privacy Settings

In Largent v. Reed (Pa. Cmwlth. Nov. 8, 2011), a plaintiff seeking recovery for injuries sustained in a car accident including permanent physical injuries, maintained a Facebook page on which plaintiff posted status updates about exercising at a gym.  Plaintiff had recently made the page private. Defendant moved to compel production of the Facebook page.  The court granted defendant's motion and required plaintiff to provide defense counsel with her Facebook password, instructing that she could change her password 21 days later.  "By definition," the court said, "there can be little privacy on a social networking website.  Facebook's foremost purpose is to 'help you connect and share with the people in your life.'  That can only be accomplished by sharing information with others.  Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets."  This decision joins several others that have held that privacy settings are unlikely to protect social media content from discovery.

Relevance of Publicly Available Information May Impact Discoverability of Private Information in Social Media

Contrary to Largent, Tompkins v. Detroit Metro. Airport (E.D. Michigan Jan. 18, 2012), denied a defendant's request for access to a plaintiff's Facebook account.  Also involving a personal injury case, the publicly available Facebook posts in Tompkins showed plaintiff holding a five-pound dog, smiling at a birthday party, and pushing a grocery cart.  The court found that these photographs were not inconsistent with plaintiff's claim that her injuries impaired her ability to work and enjoy life.  In addition, the court emphasized that, while material posted on plaintiff's private Facebook page—which was visible to only a select group of "friends"—was neither privileged nor protected by any civil common law notion of privacy, defendant did not have a "generalized right to rummage at will through information that Plaintiff has limited from public view" without first meeting a threshold showing of relevance. 

In sum, courts' decisions to consider social media as potentially protectable business information present an interesting contrast to their decisions that personal information posted via the same medium may not be as private as people think.  Employment practitioners, employees, and employers alike should continue to monitor these cases closely, as each new case adds a new twist. 

Heather R. Pruger and Anne E. DiSalvo are associates with Saul Ewing LLP's Labor and Employment and Employee Benefits Practice GroupJinnifer D. Pitcher is a Managing Associate with Orrick, Herrington & Sutcliffe LLP's Employment Practice Group.  Each is also a member of the ABA Section of  Labor & Employment Law Committee on Technology in the Practice and the Workplace.

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