The case is dated (2011) but interesting. The salient issues in Maremont v. Fredman, 2011 WL 6101949 (N.D.Ill. 2011), have enduring relevance in this culture of omnipresent electronic commerce and social media use. The case is also post-worthy for its discussion of state law privacy and publicity torts in a computerized factual setting.
Plaintiff was director of marketing for the defendant interior design firm where she was in charge of formulating and executing the firm’s social media marketing efforts. After she was hospitalized in a serious car crash, plaintiff alleged someone from the design firm accessed her personal Facebook and Twitter accounts and sent promotional messages to plaintiff’s Twitter and Facebook followers/friends. Plaintiff filed suit against the design firm and its principal officer under the Federal Lanham Act (15 U.S.C. § 1125) and Stored Communication Act (18 U.S.C. § 2701) and also for violating the Illinois Right to Publicity Act (765 ILCS 1075/60) and for common law intrusion on seclusion. The parties moved for summary judgment on all claims.
Result: The Court denied both parties’ summary judgment motions on plaintiff’s Lanham Act (a false association claim) and Stored Communication Act claims. The Court granted summary judgment for defendants on plaintiff’s state law publicity and privacy claims.
The Court denied both parties’ summary judgment motions on Plaintiff’s false association claim. Also called false endorsement, an action for false association lies where a person’s identity (including likeness, voice, or other unique characteristics) is impermissibly connected with defendant’s product or service in such a way that consumers get the impression that plaintiff sponsors or endorses defendant’s products or services. A false association/endorsement plaintiff must show she has a reasonable interest to be protected and an intent to commercialize her identity. Otherwise, anonymous persons with no ability to monetize their identity could conceivably sue for false association. The plaintiff must also prove actual economic damages (e.g. lost sales, profits, good will) resulting from the consumers’ reliance on defendant’s misleading statements or conduct. Maremont, *4.
Here, the Court did find that plaintiff had a well-known name in the design community and therefore had a protectable commercial interest in her identity. But because discovery wasn’t complete on the damages issue, it was premature for the Court to enter summary judgment for either party on the false association count.
Update: On March 3, 2014, the Court granted defendants’ summary judgment motion on Plaintiff’s false association claim. Plaintiff’s Stored Communications Act claim survived summary judgment and the parties are going to trial on that count.
Plaintiff’s Stored Communications Act (SCA) claim also survived summary judgment because of unresolved fact disputes. A Federal statute aimed at protecting against computer hackers, the SCA creates a private cause of action against a defendant who intentionally accesses (either without authorization or after exceeding authorization) and alters or obtains plaintiff’s stored electronic communications (e-mail, e.g.). Maremont, *5, 18 U.S.C. § 2701.
Plaintiff established that her Twitter and Facebook accounts belonged to her even though she signed up for both accounts at defendants’ office and on its computer equipment. Since defendants clearly were able to access and send promotional tweets and Facebook messages from plaintiff’s personal accounts, there was a triable fact question as to whether defendants exceeded their authority to access those accounts.
In her state law right to publicity count, plaintiff asserted that the design firm – by sending marketing messages from plaintiff’s social media accounts – used plaintiff’s likeness to promote defendants’ business. A statutory publicity act claim requires a plaintiff to plead and prove (1) an appropriation of one’s name or likeness; (2) without written consent; (3) for another’s commercial benefit. 765 ILCS 1075/60; Maremont, *6. Plaintiff’s right of publicity claim failed because she couldn’t establish element (1): that defendants pretended to be plaintiff when they sent messages from plaintiff’s Twitter and Facebook accounts. Defendants clearly made it known that plaintiff was injured and that defendants, not plaintiff, were sending the promotional electronic missives. Maremont, *7. As a result, since defendants weren’t passing themselves off as plaintiff when they sent the messages, the defendants didn’t misappropriate plaintiff’s identity or likeness.
Defendants also defeated plaintiff’s intrusion on seclusion claim. A species of the right to privacy tort, an actionable intrusion on seclusion claim requires a plaintiff to show (1) an unauthorized intrusion into seclusion; (2) intrusion that is highly offensive to a reasonable person; (3) the matter intruded upon was private; and (4) the intrusion caused the plaintiff anguish and suffering. The plaintiff must also demonstrate that she attempted to keep private facts private. And if something is displayed openly, there is no reasonable expectation of privacy under the law. Maremont, *7.
Here, because plaintiff had so many Twitter (more than 1,200) and Facebook followers and frequently invited her followers to visit the design firm’s website and also linked to the firm’s public site and blog, the Court found that plaintiff didn’t try to keep any facts private. Since plaintiff couldn’t point to any private information which defendants intruded on, the intrusion on seclusion claim failed. Maremont, *7.
Afterwords: According to PACER, the Federal court public access portal, the case is still going. Defendants have now moved five separate times for summary judgment. Substantively, the case is relevant because it posits that a Twitter account is property of the individual account holder even though it was opened on employer premises and using employer equipment. Maremont also demonstrates that a party’s commercial interest in her name and reputation and her private electronic communications are legally protectable interests under Federal and state law.