Property in a LinkedIn Account: Employer or Employee?

At the IT.Can conference earlier this week, I outlined some legal issues with social media.

One of my quick points was that there could be an issue about the entitlement of an ex-employee to a professional LinkedIn account. The case I had in mind in listing the issue was one involving a woman named Linda Eagle, who built up a company with her own name, but when she sold it and the new owners fired her, a dispute arose whether they could keep her LinkedIn profile. Since her assistant had her password, the employers managed to take over the profile. She sued.

A court in the US has ruled [PDF] that Ms Eagle does not have a case under the Computer Fraud and Abuse Act (CFAA) for unauthorized use, but she may have a case under state law of conversion. (Can the tort of conversion can cover data or other such claims?) The link above is to an ABA story, whose title is misleading because it mentions only the dismissal of the federal case but not the maintenance of the state law case. Neither has been decided; this was only about jurisdiction.

So: what would you advise your clients? Your partners?

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Comments

  1. Hi John. Good issue.

    Why would an employer fight to control a social media property that is “keyed” to an individual’s personality and not the company brand? If the company succeeds it’s left controlling something that will be hard to extract value from. Followers, of course, are only following the personality.

    If an employer wants to maintain a social media property with value that accrues to the company, dictating the content of the property so it is not keyed to personality, using the employment contract (or at least a good statement of job responsibilities) to make clear who has rights to what and implementing good password control should suffice. (Password control is so important, and difficult given the prevailing use of consumer applications for enterprise communications.)

    If an employer simply wants to prevent an employee from taking LinkedIN or other professional social media contacts obtained while employed, I don’t see why some enforceable right could not be created through contract. However, it seems the interest at stake is just as well (or better) addressed through more traditional means – i.e., a reasonable non-solicit or non-competition restriction. Interestingly, we’re all a little more like public personalities nowadays. If our employers want a means of obtaining the full benefit of our personalities, there are well established means of doing so directly.

    Dan