Friday, December 30, 2011

Blogging in Absent Employee’s Name Could Be False Endorsement

This posting was written by Cheryl Beise, Editor of CCH Guide to Computer Law.

A former employee of an interior design firm who had a personal Twitter following of approximately 1,250 people had standing to pursue a Lanham Act false endorsement claim against the firm for its alleged use of her personal Twitter and Facebook accounts to promote its business when the former employee was in the hospital, the federal district court in Chicago has ruled.

The former employee satisfied the prudential standing requirement for a false endorsement claim because she had developed a protected, commercial interest in her name and identity through her use of social media in the Chicago design community, according to the court.

There was undisputed evidence in the record that during the former employee’s hospitalization, design firm employees accessed her personal Facebook account and accepted friend requests at least five times and posted 17 Tweets on her personal Twitter account.

Stored Communications Act

The court said that the firm’s unauthorized access to the former employee’s Twitter and Facebook accounts could constitute violations of the Stored Communications Act (SCA) if the former employee could show that she suffered actual damages as a result of the firm’s unlawful access to her accounts. The SCA claim required further discovery on the issue of damages.

Right to Publicity

The former employee could not pursue an lllinois Right of Publicity Act claim, the court held. The firm’s employees who used the account did not pass themselves off as the plaintiff and thus did not appropriate her identity within the meaning of the Act, the court determined. Before leaving the firm, the former employee had publicly thanked her temporary replacements for their “amazing posts.”

The decision is Maremont v. Susan Fredman Design Group, Ltd., CCH Guide to Computer Law ¶40,312.

Further information regarding CCH Guide to Computer Law appears here.

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