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Social Media Law
St. Johns University School of Law
Tabibi, Pedram A.

Social Media and the Law – Tabibi – Spring 16
 
Introduction to Social Media:
The top social media platforms include: Facebook, Twitter, LinkedIn, Pinterest, Instagram, and Snapchat
Social media is now a part of everyday life, business, and personal use
People use social media to communicate and upload content, including pictures and videos
Businesses use social media to engage with customers, promote brands, and to sell their products
 
Ownership Of Social Media Content:
Employer v. Employee
Employees are social media brand ambassadors on social media platforms, and increasingly spend time at work both on personal and business social media accounts. As a result, the question of who owns social media content has arisen
 
Phonedog v. Kravitz [Twitter] 2011
Defendant, as part of his employment, created a twitter account where he submitted video and written content on behalf of the company. This account accumulated seventeen-thousand followers. Upon termination, he changed his twitter handle from “@PhoneDog_Noah” to “@noahkravitz”. He did not give the twitter account over to his company. PhoneDog sued for $340,000.
Claims that were brought:
Misappropriation of Trade Secrets
Company argued that the password to the account was a trade secret, while defendant countered stating that the follower list was public information and, therefore, not a trade secret
Intentional Interference with Prospective Economic advantage
Negligent Interference with Prospective Economic Advantage
Conversion
First case to discuss what the value of a follower was
Companies must create the account and have a written agreement concerning the ownership of the account. Furthermore, the account should be maintained in the company’s, not the employee’s name
Eagle v. Morgan [LinkedIn] Employee was well known throughout the industry on her own. She created a LinkedIn, which she associated with her role in the company. Upon termination, the company changed her password so that she could not get into her LinkedIn. They then proceeded to change everything on her LinkedIn so that the information reflected the information of her replacement. However, the URL was not changed, so if someone searched for her, the LinkedIn would still appear under her name
The company encouraged its employees to create LinkedIn accounts, and also became involved in those account’s content, however no policy existed to inform employees that their LinkedIn accounts were the property of the employer. Furthermore, the company did not pay for its employee’s account.
Claims that were Brought:
Employee’s Claims:
Unauthorized use of name
Employee won
Her name had commercial value due to her investment of time and effort in developing her reputation in the banking education industry
Thus, employer was using her name without permission for commercial or advertising purposes
In other words, by looking for the employee, an individual would unwearyingly be put in contact with the company despite the fact that the employee was no longer affiliated with the company and did not consent to the company’s use of her name
Invasion of Privacy by misappropriation of Identity
Employee won
Employee had a privacy interest not just in her picture and resume, but in her name. By maintaining the URL in the employee’s name, this privacy interest was violated
Misappropriation of Publicity
Employee Won
The employee maintains the exclusive right to control the commercial value of her name and to prevent others from exploiting it without permission. By using the employee’s password to enter her LinkedIn account, changing the password to prevent her from entering it, and then altering her account to reflect another person’s information, the company deprived the employee of the commercial benefits of her name
Identity Theft
Company Wins
The court does not find that the employee has established that this was an unlawful possession since her name was publically available and there was no information left on the page that could establish the employee’s identity
Company Wins
The sole item converted in this case is the LinkedIn account. Numerous courts, however, have found that items such as software, domain names, and satellite signals are intangible property, not subject to a conversion claim. As a LinkedIn account is not tangible chattel, but rather an intangible right to access a specific page on a computer, employee is unable to state a cause of action for conversion
Tortious Interference with Contract
Company Wins
The employee was able to maintain her contract with LinkedIn, thus there is no cause of action here
Company’s Counterclaims:
Employee Wins
The company never had a policy of requiring that its employees use LinkedIn, did not dictate the precise contents of an employee’s LinkedIn account, and did not pay for the account
Moreover, the company failed to put forth any evidence that the employee’s contact list was developed and built through the investment of the company’s time and money as opposed to the employee’s own time, money, and past experience
Unfair competition
Employee Wins
Even though the employee won on several causes of action, she was unable to recover any money:
No compensatory damages because:
The damages could not be established with reasonable certainty
She could not produce an expert to attest to a reasonably fair basis for ca

ople manage it for him
Mattocks v. BET [Facebook] Plaintiff created a Fan Page for a new series BET was doing. BET liked the Page and entered into a contract with the plaintiff. This agreement stated that each party would maintain administrative rights to the Page. Plaintiff would manage the Page and BET would supply Plaintiff with trademarks and confidential information that BET would tell her to post at specific times.
The two parties later entered into negotiation for full employment. During this period, Plaintiff took away BET’s administrative rights to the Page. In response, BET contacted FB to have FB shut the fan page down and move all the people who “liked” the page to a new page. Plaintiff sued
What is the value of a Facebook “Like”?
Based on the record, plaintiff cannot establish that she owns a property interest in the “likes” on the FB Page. As explained previously, “liking” a FB Page simply means that the user is expressing his or her enjoyment or approval of the content. At any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button. So if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them.”
Given the tenuous relationship between “likes” on a FB Page and the creator of the Page, the “likes” cannot be converted in the same manner as goodwill or other intangible business interests
Court states that Plaintiff is not entitled to relief because she first materially breached the contract and, once she did that, all bets were off
Keep in mind not only what the company does in terms of contracting, but also the individual policies of the platforms used. In this case, the policy would be the FB policy which is a contract that FB has between itself and its users
The lesson here is that the company wields a lot of power when it comes to FB mainly because they own the trademarks used on Fan Pages
Due to this, FB is likely to side with the company regardless of the amount of work that an individual may put into a Page
Another lesson is that once one side materially breaches the contract, all deals are off and it no longer matters if the other side breaches in response