Hunton Employment & Labor Perspectives

An employer who allegedly posted to an employee’s Facebook and Twitter accounts without her consent may face liability for its actions, according to a federal judge in Illinois. The case is Maremont v. Susan Fredman Design Group, Ltd., in the U.S. District Court for the Northern District of Illinois (2011 U.S. Dist. LEXIS 26441, March 15, 2011).

The Plaintiff, Jill E. Maremont, worked as the Director of Marketing, Public Relations and E-Commerce for an interior designer and her company, Susan Fredman and the Susan Fredman Design Group, Ltd. (Defendants). Maremont contends she created a “popular personal following” on Facebook and Twitter, and she also created a company blog called “Designer Diaries: Tales from the Interior.”

According to Maremont’s complaint, in September 2009 she was struck by a car and was hospitalized, then homebound, for months while she recovered. During this time, the Defendants allegedly impersonated Maremont by writing Posts and Tweets to her personal Facebook and Twitter followers, promoting Susan Freidman Design Group. Maremont asked Defendants to stop, but they continued. Maremont eventually changed her account passwords.

Maremont filed suit against the Defendants alleging three claims: (1) false association/false endorsement under the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (2) right to publicity under the Illinois’ Right to Publicity Act, and (3) violation of her common law right to privacy.

Defendants filed a motion to dismiss all claims. The Court denied the motion as to the first two counts, but dismissed the common law action. On the first count, the Court ruled that Maremont had adequately alleged a commercial injury based on the Defendants’ deceptive use of her name and likeliness. On the second count, the Court found Maremont had sufficiently alleged that Defendants used her likeness to promote the business without her written consent, in violation of the state law. The Court also applied a “continuing violation rule” to find this state claim timely, ruling that the limitations period did not begin to run until the Defendants’ “last unlawful Tweet.” On the third count, the Court found Maremont’s claim preempted by the Illinois Right to Publicity Act.  The Court further ruled that Maremont had not adequately developed her alternate argument in Count III, that Defendants’ intrusion into her personal “digital life” is actionable under the common law theory of unreasonable intrusion upon the seclusion of another. She also had not alleged actual malice or special damages, as needed to support a false light claim. The case is now proceeding to discovery.

As this case demonstrates, social media litigation is a growing trend. Employers may unwittingly expose themselves to claims by assuming that all online activity related to the business is company property. Employers should clearly distinguish between the personal social media accounts of their employees and those that belong to the business itself. Personal employee accounts, even if used to promote company business, should not be accessed without the employees’ express written permission. Clear written policies on social media use are the best way to clarify the respective roles and expectations of employees and employers.