IP Law Daily, PUBLICITY RIGHTS—EDPa: Banking Education Company Misappropriated Identity of Former Employee by Taking Over Her LinkedIn Profile, (Mar 14, 2013)

By Tobias J. Gillett, J.D., LLM.

A banking education company made unauthorized use of a former employee’s name, invaded her privacy, and misappropriated her publicity under Pennsylvania law by taking over her LinkedIn profile and replacing it with information about its interim CEO, but the employee failed to establish any right to compensatory or punitive damages, the federal district court in Philadelphia has ruled (Eagle v. Morgan, March 12, 2013, Buckwalter, R.).

Linda Eagle was one of the founders of Edcomm, Inc., a banking education company. Edcomm employed the social networking website LinkedIn as a marketing tool, and Eagle and other employees created profiles on the website for that purpose. Although Edcomm encouraged this activity and provided guidelines for it, it did not require it or fund any of its employees’ accounts. It also did not adopt a policy regarding ownership of the accounts.

On October 7, 2010, Sawabeh Information Services Company acquired Edcomm, and on June 20, 2011 it terminated Eagle’s employment. Eagle had provided her LinkedIn password to Edcomm employees to enable them to respond to certain messages and to update the account, and on June 20, 2011, following her termination, Edcomm employees changed her password, locking her out of the account. On July 7, 2011, LinkedIn took over the account, and by July 14, 2011, Eagle regained access to it. Eagle alleged, however, that she had not started receiving her LinkedIn messages again until October 7, 2011.

Although Edcomm provided public notice that Eagle was no longer affiliated with Edcomm within a week of her termination, her profile did not announce that change. Instead, the profile was updated to contain the name, picture, education, and experience of Edcomm’s interim CEO. In addition, a LinkedIn or Google search for “Linda Eagle” would direct the searcher to that profile.

Eagle filed suit against Edcomm and various Edcomm and Sawabeh employees, asserting claims for unauthorized use of her name in violation of Pennsylvania statute, identity theft in violation of Pennsylvania statute, common law invasion of privacy by misappropriation of her identity, and common law misappropriation of publicity, among other claims.

Unauthorized use of name. Under Pennsylvania law, “[a]ny natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose” without written consent “may bring an action to enjoin such unauthorized use and to recover damages for any loss or injury sustained by such use.” The court concluded that Eagle satisfied this standard. Her name had “commercial value” due to “her reputation in the banking education industry,” and she had published, presented at conferences, and been quoted in publications. She had “extensive experience in the banking education industry and generated substantial annual sales.”

Eagle had also demonstrated that Edcomm employed her name for “commercial or advertising purpose[s]” without her consent. A search for “Linda Eagle” would cause a Google or LinkedIn searcher to encounter a profile containing content about Edcomm and Edcomm’s interim CEO. Edcomm’s use of Eagle’s name for commercial benefit in this manner constituted a violation of Pennsylvania statute, in the court’s view.

Invasion of privacy. The court also concluded that Eagle had established a claim for invasion of privacy by misappropriation of her identity. The court explained that Pennsylvania had adopted the tort of intrusion upon seclusion set out in the Restatement (Second) of Torts, under which “a defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of plaintiff’s name or likeness.” The tort did not require the misappropriation to have been done commercially.

Although Edcomm did not use Eagle’s likeness or credentials on the LinkedIn profile, it had used her name to direct traffic to the account, and the profile had her name in its URL. Moreover, as previously established, Eagle’s name had substantial reputation and commercial value within the baking education industry. Therefore, the court concluded that Edcomm had committed invasion of privacy through misappropriation of Eagle’s identity.

Misappropriation of publicity. Furthermore, the court determined that Edcomm had committed the tort of misappropriation of publicity. Under Pennsylvania law, a defendant commits that tort by “appropriating “the plaintiff’s valuable name or likeness, without authorization, [and using] it to defendant’s commercial advantage.” The court noted that this tort differed from that for invasion of privacy in that misappropriation of publicity protects against loss of commercial value, while invasion of privacy “is a personal right created to protect one’s privacy.”

Here, Eagle possessed the “exclusive right to control the commercial value of her name.” Edcomm deprived her of her name’s commercial value by locking her out of her LinkedIn account, changing it to contain information about Edcomm’s interim CEO, and thereby directing people searching for her to Edcomm’s information. This conduct amounted to an appropriation of Eagle’s publicity for Edcomm’s commercial advantage.

Identity Theft. However, the court concluded that Edcomm had not committed idetntiy theft. Under Pennsylvania law, a person commits identity theft by “possess[ing] or us[ing], through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.” Here, the court found Edcomm had not unlawfully possessed Eagle’s name because it was publicly available. Moreover, directing traffic to a profile with Edcomm information “was not so clearly an ‘unlawful’ purpose” that it amounted to identity theft.

Damages. Although the court thus found that Eagle had satisfied the elements of three causes of action, the court concluded that she was not entitled to compensatory damages. The court noted the under Pennsylvania law a plaintiff must establish damages “with a fair degree of probability.” Eagle had set forth a damages calculation based on her average sales per year divided by her number of contacts on LinkedIn, to establish a dollar figure per contact. She then divided that by four to represent the quarter of the year she alleged that she did not have access to her account.

The court found that Eagle had not established her damages to the necessary extent. She had not identified any particular item of business that she could have obtained, but did not obtain, during the time she did not have access to her LinkedIn account. The court observed that she might not have been able to acquire any business through her LinkedIn contacts during that period. Moreover, she relied on damages testimony by a person who was never qualified as a damages expert, provided no foundation for the figures he used, did not connect Eagle’s sales to her use of LinkedIn in any way, assumed that each LinkedIn contact “would have unfailingly generated a certain amount each year,” and made several questionable uses of her sales figures in different years. The court found his methods “to be nothing more than creative guesswork based on mere speculation.”

Furthermore, the court observed that Eagle had not connected her damages to Edcomm’s actions. She had not identified “a single lost customer, deal, or transaction.” Moreover, she had not shown how Edcomm could be held responsible for any losses during the period after LinkedIn restored her access to her account. Although she claimed she lost messages after that time, she did not demonstrate how that loss could be attributed to Edcomm. Therefore, the court found that it could award Eagle only “compensatory damages of $0.”

Moreover, the court concluded that it also could not award her punitive damages. Under Pennsylvania law, these could only be awarded “where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.” The court noted that it could conclude that Edcomm intended “to harm [Eagle] and impede her ability to compete in the banking education industry,” but that it could also conclude that Edcomm was merely operating under “a well-intentioned belief that the LinkedIn account and its contents belonged to Edcomm,” and that it was entitled to make whatever changes it saw fit. Eagle had failed to present evidence to establish Edcomm’s “state of mind” or the “circumstances under which these events occurred,” and thus did not demonstrate her entitlement to punitive damages.

In addition, the court entered judgment in favor of Edcomm on Eagle’s claims for conversion, tortious interference with contract, civil conspiracy, and civil aiding and abetting, and in favor of Eagle on Edcomm’s counterclaims for misappropriation, unfair competition, and conversion.

The case is Civil Action No. 11-4303.

Attorneys: Linda Eagle, pro se. Philip Hirschhorn (Buchanan Ingersoll & Rooney PC) for Sandi Morgan.

Companies: Edcomm, Inc.; Sawabeh Information Services Co.

Cases: PublicityRights TechnologyInternet PennsylvaniaNews