The PhoneDog, Maremont and Hays Specialist Recruitment cases all illustrate the difficulty of defining ownership rights in social networking accounts and quantifying and dividing their associated value to a business and/or employee.
Another legal wrangle is being fought out over a LinkedIn account in the case of Eagle v Morgan.
In this case the Plaintiff, Linda Eagle, expended significant time, effort, and capital developing her reputation in the financial education industry. Her efforts included delivering speeches at relevant conferences, publishing in journals, newspapers, magazines and traveling abroad to meet banking leaders in her field of specialisation.
Eagle, the holder of a Ph.D. in communication and psychology, backed by extensive experience and expertise in financial services and training, established her LinkedIn account in 2008. She claimed she used her account to promote Edcomm’s banking education services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues and build social and professional relationships. She was assisted by another employee in maintaining her account who had access to her password.
In 2010 Sawabeh Information Services Company (SISCOM) purchased the outstanding shares in Edcomm. Eventually the employment of all Edcomm executives was terminated, however prior to the termination meeting, one of them, Mr. Brody, changed his LinkedIn password. After the meeting he then logged into his LinkedIn account and modified his employment status to show he was no longer employed by Edcomm.
Dr. Linda Eagle didn’t make any similar changes to her LinkedIn account prior to her termination, and upon trying to access it later in the day on June 20, 2011, she couldn’t do so.
After a public announcement about changes in executive appointments, the Pennsylvania offices of Edcomm allegedly attempted to access and hijack Dr. Eagle’s and Mr. Brody’s LinkedIn accounts. Eagle’s password, being known to an employee who assisted her maintain her LinkedIn account, was used in an unauthorised manner to gain access to her account, change her password, her account profile, and photograph to reflect that of a ‘Dr Morgan’.
As a result, her LinkedIn page featured Eagle’s honors, awards, recommendations but reflected Morgan’s picture. It appears that in doing so the company was identifying themselves as Dr Eagle, conduct which the law shouldn’t deem acceptable. It is akin to logging into someone else’s account using their password, although in this case the company may have been able to argue they had property upon her termination of employment.
However the use of Morgan’s picture in conjunction with Eagle’s honours, recommendations is clearly an unauthorised use of her name, and not only constitutes misappropriation but wrongly implies an association with the company and Eagle’s achievements. (some of which would be able to be associated with her past endeavours unconnected to her work)
Eagle claimed that Edcommn had used her LinkedIn account to prevent her connections contacting her, and acquiring business connections she had cultivated for Morgan and Edcommns’ benefit. Eagle also claimed that Edcommns had falsely represented that she had resigned from Edcomm.
Eagle sought damages, asserting that the misappropriation of her LinkedIn account had cost Plaintiff time, money, loss of goodwill, damage to her reputation, and diminution of the fair market value of her name.
The defendants had earlier initiated proceedings for securities fraud, misappropriation and breach of contract against Eagle and two former Edcommns’ executives. It was alleged within those court proceedings, which are running in tandem to the present proceedings, that there had been a failure to disclose that Edcommns had transferred all of the IP in the company to one of the executives, being Brody.
After the defendants had brought those proceedings, the present proceedings were launched by Eagle, who alleged against various violations, including breach of the Computer Fraud and Abuse Act (CFAA), the Lanham Act, unauthorised use of her name, invasion of privacy by misappropriation of identity, misappropriation of publicity, identity theft, conversion, tortious interference with contract, civil conspiracy and civil aiding and abetting.
The defendants counterclaimed, referring to a policy they had implemented requiring Edcomm’s employees to create and maintain LinkedIn accounts and surrender them when they departed from their employment.
Eagle later regained control of her LinkedIn account. The Defendants accused Eagle of wrongfully misappropriating both Edcomm’s connections on the LinkedIn account and Edcomm’s telephone number which they alleged was assigned to Eagle and improperly transferred from their AT&T account by her. They also accused Eagle of conversion of a laptop.
The Defendants additionally alleged violation of the Computer Fraud and Abuse Act, which deals with criminal hacking, but also provides for civil liability. The defendants asserted that Eagle violated ss1030(a)(2)(C) and 1030(a)(5)(C) of the CFAA, in that she allegedly improperly accessed a computer without authorisation and obtained information which was protected, resulting in damage and loss. Eagle’s response was that the counterclaims did not set out any factual basis to demonstrate that she had obtained any unauthorised access to a protected computer and sought dismissal of this aspect of the counterclaim.
Dr. Eagle’s argued that the only thing that the defendant had alleged was that she misrepresented her affiliation with Edcomm and/or used its information without authorisation, in gaining access to Edcomm’s AT&T account (hosted on AT&T’s computer) and misappropriated Edcomm’s telephone number. She maintained that this didn’t constitute unauthorised access to a protected computer as required by the CFAA. Whilst Dr. Eagle went into an AT&T store, falsely stated that she was still affiliated with Edcomm, and organised the transfer of AT&T employees phone number to another cell phone with an account at AT&T. Therefore she argued that there was no factual basis for claiming she “accessed” a computer, whether Edcommns or AT&Ts, pursuant to the CFAA.
The Court agreed that AT&T employees authorised her access to the Edcomm account information, even if as a result of her misrepresentation, stored on AT&T’s computers and then transferred the cellular number from the Edcomm phone to her own new phone and therefore dismissed this claim.
Edcomm’s counterclaim also accused Eagle of breaching the Pennsylvania Uniform Trade Secrets Act (PUTSA), in appropriating their trade secrets and confidential information, including Edcomm’s AT&T account information, customer contacts, instructor identities and contacts. Eagle claimed that none of this information in issue could be properly characterised as having the quality of a trade secret. Her argument found favour with the Court as Edcomm’s website disclosed the identity of more than 1,000 clients so Edcomm’s “customer information” could not properly qualify as a trade secret. She also pointed out that the identity of Edcomm’s instructors is publicly available on their LinkedIn profiles and that the defendants couldn’t possibly allege that there was any independent economic value to Edcomm arising from their AT&T telephone account information, as Edcomm’s core business was training bankers, not acting as a telecommunications services provider.
The court agreed with Eagle in that the defendant hadn’t shown how that the discovery of a company’s telephone account information or an EIN number used to access it, even though not widely known, could qualify as a trade secret under Pennsylvania law.
The counterclaim also accused Eagle of conversion in that Dr. Eagle intentionally and through wrongful means, Eagle converted Edcomm’s Number, LinkedIn Account connections, and laptop, the ownership of which belonged to Edcomms. The Court having defined conversion as “the deprivation of another’s right of property in, or use or possession of, a chattel, without the owner’s consent and without lawful justification“, went on to assess the validity of this claim in terms of the laptop, which it found was made out.
However, under Pennsylvania law conversion claims are limited to tangible property, although there is precedent in the US to the effect that conversion can extend to intangible property. In Staton Holdings v First Data Corporation the court concluded that a phone number could be subject to a conversion claim. In Kremen v Cohen (the sex.com case), a Court considered whether domain names could be subject to conversion and whether domain names can be considered to be property.
The Court dealt with the defendants misappropriation claim made against Eagle, with Edcomm arguing that it was the rightful owner of their telephone number and the LinkedIn account connections. Edcomm argued that it’s personnel had developed, maintained, and advanced the value of the LinkedIn Account for Edcomm’s sole benefit and use and that knowing of Edcomm’s proprietary interest in these items, Eagle misappropriated both their telephone number and her LinkedIn account connections for her own use.
The court found that neither the telephone number nor the LinkedIn account connections qualified as trade secrets, being either generally known in the wider business community or capable of being ascertained derived from public information, with the result that misappropriation of trade secrets could not be established.
The Court seemed more prepared to entertain the claim, subject to further evidence, against Eagle for misappropriation of an idea, in response to their claim that with regard to the LinkedIn account connections and content, it was Edcomm personnel not Eagle who had maintained all connections and much of the content on the LinkedIn Account. The defendant said that these actions were undertaken at their expense and performed for their exclusive benefit. As there was a conflict over this issue, the Court has sought further discovery of facts before making a finding on the issue. There is therefore an outstanding dispute as to who was responsible for generating the goodwill in the LinkedIn account.
Interestingly, the Court glosses over the issue of any possible violation of LinkedIn’s terms and terms of usage, as set out on LinkedIn’s website. LinkedIn makes provision for separate corporate accounts, just like some other social networking sites.
It is submitted that a person’s contacts should be characterised as personal, unless otherwise clearly agreed to within a contract. After all, a person such as Linda Eagle does have the exclusive right to use their own name and benefit from her past endeavours. When an employee ceases to work for a company, they shouldn’t cease to benefit from their own name and the goodwill they have gradually built up in it in their field of expertise over the course of their career.
By way of analogy, we are all aware that Bill Gates doesn’t work for Microsoft anymore. Were he to change his name, should another Microsoft employee be entitled to change their name to Bill Gates and benefit from his personal and business reputation for Microsoft’s benefit? Most members of the public would tend to instinctively feel that this would be unfair, not to mention misleading, as they would naturally believe they were getting the ‘real’ Bill Gates.
If the company that owns ‘Barney the Dinosaur’ decided to put someone else in Barney’s dinosaur suit, a reasonable person could be taken to know that Barney the Dinosaur is a character rather than a real person, and therefore understand that a number of persons could fulfil that role.
In the online world what people think and what people really know is slightly different, particularly as more people increasingly outsource or delegate content, passing it off as their own. However, where a person signs on to a social networking site using a screen name, that represents their identity in that space.
If a reasonable person would think that it is a real person, a known individual, particularly where they are using their own name, people should be entitled to assume they are dealing with that person in conducting dealings with them.
Rather than looking at who owns a person’s LinkedIn connections or other social networking contacts/followers, it seems that Courts should turn their mind to considering who it is that ‘made‘ the relevant contacts and for whose benefit they were used. Whether it was a shell or role such as Barney the Dinosaur or Bill Gates or a real person is the proper question that the courts should be focusing on.
It is clear that Linda Eagle’s name and personal and professional identity belongs to her. In the absence of an agreement between an Employer and Employee, it would be a difficult task to analyse and dissect a person’s identity, cleanly dissociating them from the contacts they bring into a job, the connections they establish and maintain within their professional role, and the goodwill that they generate through the contributions they make to the value of all of those contacts.
At common law, it is well established that employees are not supposed to take customer lists with them when they leave as that falls into the category of know how. The standard as to what constitutes know how in this context, traditionally seems to have been whether something is of the character a normal mind would be able to recall, without either a savant memory ability or a concerted effort to systematically memorise it.
Applying any standard is inherently problematic, as an employee creates contacts both on their own time and company time. Persons who communicate with a person on company time may often either start or continue doing so for both professional and personal reasons. Persons with whom a person deals with on social networking sites in their capacity as an employee, may or may not consent to having contact with their successor or predecessor.
A LinkedIn profile seems analogous in its nature to a Resume, representing the cumulative efforts of a person to build up their reputation over their career. Apportioning value between an employer and employee in the value of various connections/followers/contacts, built up and used over a period of time, some of which may be on personal and company time seems like a difficult task.
The problem is similar in nature to the battles between Employers and Employees in the past in relation to the poaching of clients, with a slightly new dimension given the increasing value of social media accounts to businesses leveraging the marketing power of the internet.