Yesterday, we looked at a recent federal-court decision to determine whether LinkedIn connections are considered trade secrets. Today, after the jump, we look at whether your business has any protectible interest in a LinkedIn account that you create and maintain for your employees.
Let’s run down the facts one more time…
The case is Eagle v. Morgan. You can find a copy of Ms. Eagle’s complaint here. And the defendants’ counterclaim complaint here. And here are the facts we discussed yesterday.
The idea to establish and maintain employee LinkedIn pages may be protected.
The tort of misappropriation of an idea has only two elements:
- The plaintiff has an idea that was novel and concrete; and
- the idea was misappropriated by the defendant
To determine whether an idea has been misappropriated, courts in Pennsylvania, where the case we discussed yesterday was decided, look to the three elements of common law misappropriation:
- plaintiff has a property right in a thing
- defendant misappropriation that thing (reaping where it has not sown); and
- injury to the plaintiff
The Eagle court acknowledged that, based on the facts set forth in its Counterclaim Complaint, the defendants may have a tenable claim for misappropriation of an idea.
The Counterclaim Complaint expressly alleges that, with respect to the LinkedIn account connections and content, “Edcomm personnel, not Dr. Eagle, developed and maintained all connections and much of the content on the LinkedIn Account, actions that were taken solely at Edcomm’s expense and exclusively for its own benefit.” … While Plaintiff argues that Edcomm fails to allege facts that would show that it made a substantial investment of time, effort, and money into creating the … LinkedIn account, Edcomm counters that its employees developed the accounts and maintained the connections, which are the route through which Edcomm contacts instructors and specific personnel within its clients. As these conflicting allegations create an issue of fact requiring further discovery, the Court must deny the Motion for Judgment on the Pleadings as to the misappropriation counterclaim.
How do you help to protect your ownership interests in social-media accounts that you create and maintain for your employee?
- Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
- The company should create/register the account. This will indicate that the company has some ownership stake in the account.
(Easy, folks. I’m not suggesting that companies should set up personal employee social-media accounts for them — only those accounts in which the company seeks to maintain an ownership interest). Also, be sure to consider the terms of use that any social-media company has in place for end users. - Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.