Page 49 - FDCC Insights Spring 2022

Walter Judge
Can your social media contacts be your employer’s trade secret? Maybe
By Walter Judge
Employers and employees alike use social media to promote and define their businesses and themselves in the digital space. From personal connections on Facebook, to professional marketing on LinkedIn, these connections on social networks are hugely important and valuable both to the employer and employee.
Given the heightened interest that both employees and employers have in their digital presence, courts have begun to grapple with the difficult issue of who actually owns these social media accounts. Companies believe that employees should not be permitted to misappropriate the valuable goodwill and customer relationships, while employees believe they have a right to retain the business relationships they developed through their social media platforms. Courts have been asked to decide whether an employee’s social media contacts can qualify as the employer’s trade secret.
In December, 2011, a Pennsylvania federal court answered this question in the negative. In the case of Eagle v. Morgan1, Linda Eagle, the founder of a company, Edcomm, had developed a significant LinkedIn presence closely connected to Edcomm. In 2010, Edcomm was purchased. In 2011, she was terminated and Edcomm took over her LinkedIn account. She sued Edcomm. Shortly thereafter, she regained control of her LinkedIn account and refused to return it to Edcomm. Edcomm counterclaimed against her in her lawsuit, contending that by regaining control of the LinkedIn account and refusing to return it to Edcomm, she had misappropriated Edcomm’s trade secrets. She moved to dismiss Edcomm’s misappropriation claim. With little analysis, the court dismissed the claim, stating that the LinkedIn contacts on the Eagle/Edcomm account were “generally known . . . or capable of being easily derived from public information.”
In September 2018, a Virginia federal court reached the same conclusion as it related to a former employee’s Twitter account. In BH Media Group v. Bitter2, a newspaper sued a former reporter for taking a Twitter account he had used while employed at the newspaper with him. The newspaper claimed that the Twitter
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1 2011 WL 6739448 - 2011
2 No. 7:18-CV-00388 (W.D. Va. Sept. 27, 2018)