In Eagle v. Morgan (E.D. Penn. March 12, 2013), a banking company was found liable for infringing the publicity rights of its former CEO, Dr. Eagle. When Eagle left her position, the company used her password to access her LinkedIn account and lock her out of it. They then replaced her information with that of the new CEO. For a period of several weeks, therefore, whenever someone searched for Eagle and followed the link to her profile, they found the information for her replacement instead.
This decision is significant for several reasons. First, it underscores a trend I've written and spoken about often, which is the growing significance of publicity rights in social media. By definition, these media function by sharing information from and about individuals. The body of law that governs how individuals' identities are used, therefore, cannot help but be important to activities in that media. We have seen several such cases so far, and will certainly see more in the near future.
Second, this decision sheds more light on the types of evidence to which courts will look in determining whether an individual's identity has "commercial value"--which is typically a prerequisite to the existence of actionable publicity rights--in today's digital economy. Here, the court found that Dr. Eagle's identity "has commercial value due to her investment of time and effort in developing her reputation in the banking education industry. She testified that she is a published authority, has been quoted in others’ publications, and has presented at conferences. Further, ... [she] had extensive experience in the banking education industry and generated substantial annual sales." Those factors could be applied just as easily to executives and professionals in all sorts of industries (cough, even me, cough), meaning that this is risk factor that every employer should take to heart when publishing in social media.
Third, in concluding that the employer's actions in commandeering Eagle's LinkedIn account were unjustified, the court repeatedly points out that the employer--although clearly concerned about its employees' social media presence--did not have a policy in place determining who owned the accounts. The strong implication is that, if the employer had adopted and Eagle had signed a policy making clear the employer's right to control the account, the result may well have been different. Obviously, we lawyers can't say it enough: employers, you need to implement a clear social media policy before issues like this arise.
Fourth and finally, Eagle's victory was a Pyrrhic one. Although she prevailed on multiple counts stemming from the misuse of her likeness, she was awarded a grand total of $0. Why? Because she couldn't prove that she's actually been harmed by the diversion of LinkedIn traffic. That wasn't for lack of trying; Eagle presented detailed reports of her sales revenue for the year in question, and analysis of it had dipped. But the court found her explanation connecting those figures to the employer's actions "nothing more than creative guesswork based on mere speculation." Similarly, the court refused to award punitive damages, because Eagle did not present evidence suggesting that her employer had acted out of a malicious intent to injure her.
Employers should take no comfort, though, in Eagle's failure to collect. This case will serve as learning opportunity for future plaintiffs, who may not make the same mistakes she did. Nor did she fall short by much; she presented copious mounts of financial information that another judge may have found more persuasive. Besides, many damage claims do not make it all the way to final resolution by a court; they settle instead. And less than a year ago, Facebook settled a class-action publicity rights lawsuit against it for $20 million. Therefore, the next executive-level plaintiff to bring a publicity rights claim based on use of their likeness in social media may well put all the ingredients of their case together in a way that cooks up a major financial recovery.
