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Court Says Employee Owns LinkenIn Account but is Not Entitled to Recover any Damages


By Robert Crump

She doesn’t work here anymore
The founder of a consulting business created a LinkedIn profile that she used to promote herself as well as the business.  A former co-worker helped her maintain the page and, as a result, knew the founder’s LinkedIn password. The business had become a policy for the business to urge employees to create LinkedIn accounts.  It also put in place policies governing on-line, social media content. Moreover, the company displayed an intense interest in the actual ownership of these accounts.  

In 2011, the business was sold and  the founder was let go.  At that time, the business had not yet adopted a company policy to inform employees their LinkedIn accounts were company property.  Nevertheless, when  the founder was terminated, the new owners made some significant changes to the founder’s LinkedIn profile. They changed her password, removed her name and picture, and represented that she had resigned from the company.  Furthermore, the new owners took most of the founder’s information and replaced it with that of the new, interim CEO.  At the time, if you searched for the founder’s LinkedIn profile, you would be directed to the new CEO’s information.

Employee brings federal and state claims against former employer
The founder sued her former company for violations of the Computer Fraud and Abuse Act (“CFAA”) and the Lanham Act (which prohibits false advertising) for illegally taking control of her LinkedIn account.  She alleged the misappropriation of her account amounted to unauthorized use of her account and name, invasion of privacy, misappropriation of identity, misappropriation of publicity, identity theft, conversion, and tortuous interference with a contract (i.e. the LinkedIn User Agreement), among others.

The business brought a counter-suit and maintained that the founder’s LinkedIn “connections” belonged to the company and that  the founder had stolen the connections. The business’ misappropriation claim was thrown out in the early stages because the information sought to be protected was generally known in the wider business community and was easily discoverable. The court held that LinkedIn connections are not trade secrets because they are generally known. Furthermore, the court dismissed the founders’s CFAA and Lanham Act claims, with only her state law claims surviving to trial.

In its decision, the court found that although  the business encouraged the creation of and maintained the founder’s LinkedIn account, it was not an owner of the account.  Per the LinkedIn “User Agreement,” the account belonged to the founder alone and she was individually bound by the User Agreement.  The company had no ownership policies in place.  Furthermore, the court suggested the company was aware that the lack of such policies could be an issue in the future, yet the company had declined to adopt any social media ownership policies.

While the court ruled in favor of the founder on her misappropriation of identity, invasion of privacy, and unauthorized use of name claims, she was unable to recover any damages because she was unable to prove damages with any certainty.  The end result was a hollow victory for the founder, but one with important implications with regard to the ownership of social media profiles.

The importance of having a social media policy in place
The aftermath of this case serves as a reminder of the difficulty of placing social media claims into the existing intellectual property framework of federal law.  However, employers need to remain wary of state court lawsuits based on personality and publicity rights.  Employers need to be proactive and develop social media policies and ownership agreements before the need actually arises.  These policies and agreements should establish not only who owns the accounts, but should also specify a procedure for returning login information upon termination.  Agreements over the control of accounts will be critical in these types of disputes.

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