District Court Denies Summary Judgment in False Designation Case Involving Unauthorized Facebook and Twitter Postings
Jennifer Gaeta | Bloomberg Law
The U.S. District Court for the Northern District of Illinois denied the parties’ motions for summary judgment as to the Lanham Act and Stored Communications Act claims, finding that discovery was ongoing on the issue of actual damages. The court did, however, grant defendants summary judgment on plaintiff’s right of publicity claim, finding that the defendants had not actually appropriated her identity. The court also granted defendants summary judgment as to plaintiff’s privacy claim, because the communications at issue were not about private matters.
Chicago Designer Impersonated in Tweets and Posts
Defendant Susan Fredman Design Group, Ltd. (“SFDG”) is a Chicago interior design firm, owned by defendant Susan Fredman. Plaintiff Jill Maremont was employed by SFDG as the marketing, public relations, and E-commerce director. In the course of her employment, she actively used social media to promote SFDG. Doing so, she became somewhat well known, gaining a 1,250 person Twitter following. She also created the “Designer Diaries: Tales from the Interior” blog, hosted on the SFDG website.
Maremont maintained personal Facebook and Twitter accounts that were undisputedly not for SFDG’s benefit. Maremont also had a Facebook account for SFDG that was not her personal account. Maremont used her Twitter and Facebook posts to promote SFDG and linked them to her blog and to SFDG’s website. “Maremont entered and stored all account access information, including passwords for her Twitter and Facebook accounts, on the SFDG server by utilizing a SFDG-owned computer, although the folder in which she stored this information was locked and Maremont never gave authority to anyone to access her personal Twitter and Facebook accounts.” Maremont at 4.
On September 15, 2009, Maremont and a co-worker were hit by an automobile and she was seriously injured. She sustained brain trauma and suffered from post-concussion syndrome as well as post-traumatic stress disorder. While she was hospitalized, SFDG made postings on her personal Facebook page and tweets from her personal account. One tweet linked to Maremont’s blog with an entry by Fredman explaining the accident and that a guest blogger would be assuming Maremont’s role. Maremont requested that employees not make posts to her Twitter or Facebook while she was out, but they did not comply with that request. She and her husband then changed her passwords.
Maremount returned to work in May 2010. She posted on Facebook and Twitter that she was back and linked to a blog on the SFDG website. Then in June, she stopped working again pursuant to her doctor’s recommendations. Maremont filed the instant suit on December 10, 2010, and sent a letter in February 2011 that she intended to return to work. “On March 8, 2011, SFDG’s lawyer responded by letter to Maremont’s attorneys advising them that SFDG had filled Maremont’s position after her father directed SFDG employees not to contact Maremont under any circumstances.” Id. at 6. Thereafter, Maremont went to work for a public relations firm.
Court Denies Summary Judgment on Lanham Act Claim
Maremont brought a claim for false association under the Lanham Act, 15 U.S.C. §1125(a)(1)(A). The court explained that “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 misled about that person’s sponsorship or approval of the product or service.” Maremont at 7 (quoting Stayart v. Yahoo! Inc., 651 F.Supp.2d 873, 880 (E.D. Wis. 2009)). In response to this claim, the defendants argued that Maremont lacked standing to bring a claim of false endorsement as a non-competitor. The court, however, stated that being a competitor was not required. Instead, “[a]ll a commercial party needs to bring suit under the Act is a reasonable interest to be protected against activities that violate the Act.” Id.(quoting Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871 F.2d 697, 700 (7th Cir. 1989)). Thus, all that Maremont was required to show for standing purposes was that she intended to commercialize her identity.
The court found that:
Although promoting SFDG on Facebook and Twitter was part of Maremont’s marketing strategy while she was employed as SFDG’s Director of Marketing, Public Relations, and ECommerce, it is undisputed that Maremont created a personal following on Twitter and Facebook for her own economic benefit and also because if she left her employment at SFDG, she would promote another employer with her Facebook and Twitter followers.
Id. at 8. The foregoing was sufficient for standing, according to the court, because Maremont had a commercialized interest in her name, in that design community.
Defendants then argued that Maremont’s claim failed because she did not suffer a financial injury. The court explained that defendants had filed the motion two months before the discovery cutoff and that the court had recently granted Maremont’s motion to extend discovery. Moreover, both parties informed the court that they would need experts to testify on the issue of damages. Thus, the court found that it would be premature to find as a matter of law that Maremont did not suffer an actual injury. Accordingly, the court denied the parties’ cross motions for summary judgment on the Lanham Act claim.
Court Denies Parties Summary Judgment on Stored Communications Act Claim
Maremont contended that the defendants violated the Stored Communications Act (“SCA”), 18 U.S.C. §2701, by authoring tweets and Facebook posting under her accounts.
The SCA provision at issue states that whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility and by doing so obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system violates the SCA.
Maremont at 9-10 (citing 18 U.S.C. § 2701(a))(internal quotation marks omitted)(citations omitted).
Although Maremont had no actual evidence of the Facebook posts, it was undisputed that employees accepted friend requests on her behalf, and also that defendants posted 17 tweets on her personal Twitter account. “As such, there are disputed issues of material fact whether Defendants exceeded their authority in obtaining access to Maremont’s personal Twitter and Facebook accounts.” Id. at 10.
Defendants argued, however, that despite the foregoing, Maremont’s claim failed because she could not establish the actual damages required by the SCA. However, as with the Lanham Act claim, the court found that the motion was premature as the parties had not yet completed discovery on the damages issue.
Court Grants Defendants Summary Judgment on Right of Publicity Claim
Maremont contended that the defendants used her likeness to promote the business without her written consent and that such conduct violated Illinois Right of Publicity Act. Since there was no record evidence of the Facebook postings, the court focused instead on the 17 Tweets and found that Maremont could not satisfy the requirements of the claim because the employees never passed themselves off as Maremont. “Because Defendants did not appropriate Maremont’s identity and Maremont herself recognizes that SFDG temporarily replaced her during her absence, Maremont’s Right to Publicity Act claim must fail.” Maremont at 12.
Court Grants Defendants Summary Judgment on Privacy Claim
In a previous opinion, while the court denied the motion to dismiss Maremont’s other claims, the court granted Maremont’s motion as to the common law privacy claim on the basis that the Right to Publicity Act had replaced the common law claim. See District Court Denies Motion to Dismiss Claims that Former Employer Used Plaintiff’s Twitter and Facebook Accounts to Promote Its Business, Bloomberg Law Reports – Technology Law, Vol. 3, No. 7 (Apr. 4, 2011). Thereafter, Maremont re-pleaded the claim as a common law intrusion upon seclusion claim. Under this claim, however, the matter intruded upon must be private and a plaintiff must show an attempt to keep facts private. Here, Maremont had 1,250 Twitter followers and a number of Facebook friends. Maremont’s tweets were aimed at the design community and she signed her professional e-mails requesting that people “become a fan of SFDG on Facebook” and to follow her on Twitter. Maremont at 14. Moreover, the court found that her tweets and posts often linked to her SFDG blog. Therefore, the court found that these matters were not private and that Maremont did not make an attempt to keep them private. Accordingly, the court granted defendants summary judgment as to this claim.
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