In an update to our recent post, Hijacked Identity or Legitimate Business Practice? LinkedIn Lawsuit Soon To Be Decided By Court, we now have the Judge’s Order in the Eagle v. Edcomm case.  As you’ll recall, when the plaintiff, Linda Eagle, was terminated, her former employer, Edcomm, took over her LinkedIn account by using her username and password, replacing her picture with that of another employee, but leaving Eagle’s honors, awards, recommendations and connections.  Eagle claimed she was wrongfully locked out of the account and that Edcomm hijacked her identity and invaded her privacy.

Eagle, representing herself at trial, managed to prevail on three of her claims – misappropriation of identity, invasion of privacy, and violation of a Pennsylvania statue prohibiting unauthorized use of someone’s name – but she was not able to prove that she suffered any damages.

Her theory of damages was creative – she used her average sales per year divided by the number of contacts she maintained on LinkedIn to arrive at a dollar figure per contact, per year.  She then divided that figure by 4 to represent that for one-quarter of the year she did not have full access to her LinkedIn account.  Based on those calculations, Eagle claimed she had suffered damages in excess of $248,000. 

The court, however, was not convinced.  Creative math aside, the court noted that Eagle “failed to point to one contract, one client, one prospect, or one deal that could have been, but was not obtained during the period she did not have full access to her LinkedIn account.”  As a result, she couldn’t prove her damages with the required level of certainty.

In addition to the damages issue, one of the other interesting aspects of this case was the question of who actually owned Eagle’s LinkedIn account? 

The Court noted that Edcomm did not have a policy in place informing the employees that their LinkedIn accounts were the property of the employer, and (as one of our commenters to our previous post noted), it was questionable whether such a policy would have been binding in the first place because it contravenes LinkedIn’s “User Agreement” which states that the account belongs to the individual (“If you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us.”).

Additionally, take a look at these emails Edcomm sent internally (with Eagle as one of the recipients) discussing ownership of Eagle’s LinkedIn account:

From: Cliff Brody

Sent: Tuesday, March 2, 2010 1:36 PM

To: Linda Eagle; David Shapp; Kathy Luczak

Subject: few loose ends  

 

David….

Can you look into what our requirements/responsibilities are as far as LinkedIn accounts and former employees.  

 

CB

Clifford G. Brody

Founder & Chief Executive Officer

The Edcomm Group Banker’s Academy   

 

From: David Shapp

Sent: Tuesday, March 2, 2010 2:17 PM

To: Cliff Brody; Linda Eagle; Kathy Luczak

Subject: few loose ends  

 

I think we can leave it up forever and mine the information contained within as long as we do not pretend to be her. The company/employer owns all data on its hardware, including email archives. The employee has no rights at all in his email identity. Ordinarily, as a courtesy, employers tend to keep old accounts active for a limited time in order to avoid rejecting business-related communications, and forward personal emails to the former employee. There would potentially be an issue if the employer used the former employee’s email to perpetuate a false impression that the employee remained with the company, but simply mining the incoming traffic is certainly within the employer’s rights.  

 

David

David Shapp

Partner & Senior Vice President

The Edcomm Group Banker’s Academy   

 

From: Cliff Brody

Sent: Tuesday, March 2, 2010 3:23 PM

To: David Shapp; Linda Eagle; Kathy Luczak

Subject: few loose ends  

 

What about LinkedIn – not on our hardware. The question is who really owns that account? Ideally it would be us. We could leave it up as-is and she would have to create a new one.  

 

CB

Clifford G. Brody

Founder & Chief Executive Officer

The Edcomm Group Banker’s Academy   

 

From: David Shapp

Sent: Tuesday, March 2, 2012 3:53 PM

To: Cliff Brody; Linda Eagle; Kathy Giola

Subject: few loose ends  

 

We do. It was created with an email account that is ours, on our computers, on our time and at our direction. She cannot use that account because she does not own the email address that opened it. I think as long as we just read from it and do not write to it, we are not breaking any laws. Same thing with her email account – as long as we only read and do not write, we are within our rights to do so.

 

David

David Shapp

Partner & Senior Vice President

The Edcomm Group Banker’s Academy

Finally, to add one more wrinkle, Mr. Brody, who seems to have understood the bigger issue regarding who actually owned the account, appears to have left Edcomm at some point because he is now Eagle’s business partner and he testified on her behalf at trial regarding Eagle’s damages theory.  An interesting case.

Do you have a plan in place to address ownership of social media accounts, or the content contained on those accounts – including contacts/connections?  Do your policies and agreements give you the right to the busines content (vs. purely personal content) on the site, even if you do not have the right to take the account over from the employee?  If you have social media accounts being managed and run by one employee, have you taken steps to insure that you will control that site once the employee leaves?  This case demonstrates that a proactive approach to managing social media sites used to promote your business will go a long way to protecting your investment after an employee departs.