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More social media worries for employers

Whether through Facebook or Twitter, LinkedIn or GooglePlus, social networking is changing the way the world communicates and how business is conducted.  Employers should already be aware of the benefits and pitfalls of employee social media use. For more information on social-media-related issues for employers, our previous social media blog posts are listed below:
NLRB GC outlines federal protections for employee social media activity
NLRB posts two complaints in May regarding employee activity on Facebook
Is Social Media On Your Mind? The top 5 questions you should be asking

A recent decision highlights yet another wrinkle.

In Maremont v. Susan Fredman Design Group, LTD, Jill Maremont, as SFDG’s marketing director, promoted SFDG on her personal social media accounts.  Over time, Maremont became well-known in the Chicago design community and developed a 1,250-person Twitter following.

In September 2009, Maremont was seriously injured in a car accident.  During her recovery, SFDG, without permission, used Maremont’s Facebook and Twitter accounts to promote itself.  Maremont sued SFDG for false endorsement because SFDG falsely used her account to endorse its services.  She also alleged violations of the Stored Communications Act, which prohibits unauthorized, intentional access to communications held in electronic storage, and violations of her right to privacy.  The District Court for the Northern District of Illinois recently held that, if Maremont is able to demonstrate actual injury (i.e., money damages) or show that SFDG was unjustly enriched, she can maintain her false endorsement and Stored Communications Act claims.

Although Maremont may have a tough time demonstrating actual damages or unjust enrichment, the decision nonetheless muddies the waters for employers by creating another avenue for social media-based liability.  It also reinforces that employers should not use an employee’s social media account without permission, regardless of whether these accounts have promoted or discussed the employer in the past.  In fact, employers, to the extent they actively use or promote the use of social media, should consider creating their own pages, blogs and accounts rather than relying on employee accounts.  Doing so can help avoid the fate already suffered by SFDG: hefty legal bills despite the fact that liability has yet to be determined.