Bad Business 101: Impersonating an Employee on Twitter and Facebook

One year for Halloween when I was in law school, no, actually, I was in law school, I dressed up as Mr. T.

I had the gold, the overalls, the mohawk. People stopped me on the street to take their picture with me.

Where am I going with this? Ah, yes. While I tried my best to pull off Mr. T, there was never any risk of confusion. I was 160 pounds soaking wet, my “gold” was actually tin foil, and I’m white.

However, fast-forward 10 years. I’m a partner at a law firm. And I have a personal blog where I write about the law. So, as I advise my employer-clients to do with employees who blog and use other forms of social media to discuss work-related products and services, I include a disclaimer to alert readers that my opinions are mine and not my employer’s. In fact, this is a must in any good social media policy.

The problem with using an employee’s social media accounts

But should a social media policy also include language to the effect that the employer will not use an employee’s personal social media accounts to promote the employer’s business without permission?

The case is Maremont v. Susan Fredman Design Group. In this case, the plaintiff, an interior designer, worked as the Director of Marketing, Public Relations, and e-commerce for a prominent interior design company. During her tenure at SFDG, Maremont maintained that she became well-known in the Chicago design community, allowing her to create a popular personal following on Facebook and Twitter.

Maremont also created a blog entitled “Designer Diaries: Tales from the Interior” that is hosted on SFDG’s blog. Maremont authored frequent posts and tweets to her personal Facebook and Twitter accounts, along with the material for the Designer Diaries blog. Maremont’s image appeared on each personal post and tweet.

Shortly before her four-year anniversary at SFDG, Maremont was involved in a terrible accident. During her time in the hospital, she learned that SFDG had impersonated her by publishing posts and tweets promoting SFDG on her personal Facebook and Twitter accounts.

Maremont asked the company to stop, but it continued doing it anyway until she was able to change her account passwords. Maremont then sued under the Lanham Act. And SFDG promptly sought to dismiss the case, claiming that Maremont did not have a claim upon which relief could be based.

SFDG may have deceptively used Maremont’s name, likeliness

The Lanham Act makes it unlawful to falsely represent the origin, association or endorsement of goods or services through the wrongful use of another’s distinctive mark, name, trade dress or other device.

False endorsement occurs when a person’s identity is connected with a product or service in such a way that consumers are likely to be confused or misled about that person’s sponsorship or approval of the product or service.

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The court found that Maremont could pursue a claim under the Lanham Act. As a professional interior designer – she become well-known in the Chicago design community allowing her to create a popular personal following on Facebook and Twitter.

Maremont also alleged that her social networking activities related to her work in a commercial context, namely, as a professional interior designer and employee of SFDG. She further contended that she was engaged in the commercial marketing of her skills when SFDG wrongfully used her name and likeness by authoring tweets and posts under her name. As such, the court found that Maremont could have suffered a commercial injury based on her employer’s deceptive use of her name and likeliness.

Unfortunately for Maremont, the case was later dismissed after a failed appearance at a scheduled hearing. Go figure.

Takeaway for employers and HR:

Don’t use or access employee’s personal social media accounts without the employee’s written permission. And, even then, don’t do it.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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