Employer Allegedly Authorized Employee’s Twitter/Facebook Accounts Without Authorization and May be on the Hook for Impersonation
[Post by Venkat Balausbramani]
Maremont v. Susan Fredman Design Group, 2011 U.S. Dist. LEXIS 26441 (N.D. Ill.; March 15, 2011)
Employees increasingly promote their employers on Facebook and Twitter. As a result, there’s a fair amount of grey area around whether the employer or employee “owns” the account in question. One employer learned the hard way that it is risky to assume that the employer owns the employee’s Twitter and Facebook accounts. The employer accessed the employee’s Twitter and Facebook accounts without authorization, while the employee was in the hospital. As a result, the employee brought claims for impersonation and false endorsement. The court held that the claims could go forward.
As alleged in the complaint, Fredman is a prominent interior designer who runs the Susan Fredman Design Group (SFDG). SFDG also has an internet presence. Maremont is an interior designer that started working at SFDG in October 2005 (as SFDG’s Director of Marketing, Public Relations, and e-commerce).
Maremont was active in the online community and created “a popular personal following” on Twitter and Facebook. Maremont also created a SFDG blog entitled “‘Designer Diaries: Tales from the Interior’” (‘Designer Diaries’) that is hosted on SFDG’s blog.” Maremont’s likeness was tied to her online activities:
she authored frequent Posts and Tweets to her personal Facebook and Twitter accounts, along with the material for the Defendants’ “Designer Diaries” blog. Maremont’s image appeared on each personal Post and Tweet, which unmistakably distinguished her likeness.
In September 2009, Maremont was injured in an accident and was in the hospital for an extended period of time. While Maremont was at the hospital, Fredman and another SFDG employee visited Maremont and asked Maremont about various work projects. Meanwhile, one of Maremont’s visitors at the hospital advised that Fredman and SFDG was impersonating Maremont by:
impersonating her by authoring Posts and Tweets to her personal Facebook and Twitter followers promoting SFDG . . . each Post and Tweet displayed Maremont’s name and image giving followers the appearance that [Maremont] was the author.
Maremont then asked Fredman and SFDG to stop this practice. Apparently, the practice continued, but in December 2009, Maremont’s husband read some of the posts which Fredmand and SFDG authored and published via Maremont’s account and this caused Maremont to suffer distress. Maremont and her husband changed the passwords to her personal Facebook and Twitter accounts.
Maremont ultimately returned to work at SFDG on a part-time basis in February 2010 but found that she got a chilly reception at work. In May, Fredman expressed misgivings about Maremont’s part-time schedule and that SFDG was having cash flow problems. In response to the perceived hostility towards her, Maremont quit, and brought claims against SFDG and Fredman.
Lanham Act Claim: Maremont brought a Lanham Act claim for “false endorsement”. In order to bring a claim, she should show that she has commercialized her name or likeness. (See Stayart v. Yahoo, discussed by Eric here: “Seventh Circuit Tosses Beverly Stayart’s False Endorsement Claims.”) The court says that she has commercialized her name:
Maremont has . . . alleged that – as a professional interior designer – she became well-known in the Chicago design community allowing her to create a popular following on Facebook and Twitter. Maremont also alleges that her Tweets and Posts relate to her work in a commercial context, namely, as a professional interior designer and employee of SFDG.
The court did not discuss whether Maremont’s online activity inured to the defendants’ benefit since Maremont was posting and built up her following while she was an employee of SFDG. It’s unclear whether defendants made this argument, but even if they did, given how egregious the facts were alleged to be, it would not be a surprise for it to have fallen on deaf ears. That said, given that Maremont was an employee and clearly posted on behalf of SFDG, SFDG had a possible argument that any copyright or trademark rights accrued to SFDG’s benefit and not to Maremont. Also, given that some of Maremont’s followers were following because of her official employment status, and assume that some of the posts related to her job — shouldn’t SFDG have an argument here that it should be able to keep up with its audience via the accounts in question?
Right of Publicity: The right of publicity claim requires Maremont to show that her identity was used for “commercial purposes . . . without [her] . . . written consent.” Defendants did not argue that Maremont failed to satisfy this claim. Instead, defendants argued that the claim was barred by the statute of limitations since it first accrued in September 2009, “the approximate date of defendants’ first Tweet impersonating Maremont.” The court rejects this argument, citing to the “continuing violation rule.” Defendants allegedly continued to exploit Maremont’s publicity rights, despite Maremont’s instructions to the contrary. No luck for defendants here.
Privacy Claim: Maremont also brought a common law privacy claim based on misappropriation of her likeness. Defendants argued that the Illinois publicity statute replaced the common law tort of misappropriation of likeness. In response, Maremont argued that she could also state claims for intrusion into seclusion and false light. With respect to her false light claim the court says she failed to allege actual malice. With respect to her claim that defendants “intruded into her personal ‘digital life’” the court finds that she failed to develop this argument fully. The court dismisses these claims without prejudice and gives her a chance to replead.
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The Takeaway: The case highlights the importance of having a social media policy, which should at a minimum designate “official” employer accounts and specify when an employee’s Twitter/Facebook posts are their own vs. the employers. The case also highlights the problems that can arise when an employer or company is promoted through an employee (or a consultant’s) “personal” account. Clarity at the outset is something the employer should aim for in this situation. From a practical standpoint, it’s probably difficult to try to “take back” someone’s Twitter or Facebook following on their personal accounts. Suggesting or requiring that any promotions be conducted through official accounts, rather than personal accounts (and of course, monitoring this in practice) may be something companies may want to consider.
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