An employer who allegedly Tweeted under an employee's name potentially faces liability for violating federal law, a federal judge has ruled.
In an opinion issued this week, U.S. District Court Judge Amy J. St. Eve in the Northern District of Illinois refused to dismiss a lawsuit by a director of marketing at an interior design firm who said she was impersonated by her boss on Twitter. The decision means that designer, Jill Maremont, can proceed with the case and gather evidence to prepare for trial.
The legal dispute between Maremont and her boss dates to 2009, when Maremont was struck by a car. Maremont, an avid social media user and director of marketing for an interior design firm, promoted the firm online. She not only authored a blog for the Chicago-based company, Susan Fredman Design Group, but also used her Twitter account to post updates about interior decorating, local designers and other work-related matters.
After the accident, however, Maremont was unable to work for approximately nine months. At first, she says, she wasn't able to even log on to Twitter because she suffered a brain injury that left her with "dizziness, and sensitivity to light and sound."
Nonetheless, while recovering in the hospital, she learned from a visitor that her Twitter account was still being updated. "It's plain old rude," says Maremont's lawyer, Randall S. Newman of New York. "The girl's lying in the hospital, almost dead, and [Fredman]'s sending out tweets telling people to come to the store."
Eventually Maremont changed her account passwords, which allegedly prompted a falling out with her boss. Maremont returned to work part-time for two weeks in May, but is now receiving disability payments.
Last December, Maremont filed a lawsuit alleging that she was impersonated by Fredman (and her firm) on Twitter. Maremont argued that Fredman violated the federal Lanham Act law by using Maremont's name and likeness in a misleading way. Maremont also alleged a violation of her right to publicity -- or the right to control the commercial use of her name and likeness.
But Fredman countered in court papers that posting under Maremont's name didn't confuse consumers because Maremont used her Twitter account to promote Fredman's company. "Accepting [Maremont's] allegations as true, her complaint is simply that while she could not perform her job duties ... defendants did her job for her without her permission," Fredman argued in a motion to dismiss the lawsuit.
The judge, however, ruled that Maremont's allegations warrant a trial. "Construing the facts and all reasonable inferences in Maremont's favor, she alleges that she was engaged in the commercial marketing of her skills when defendants wrongfully used her name and likeness by authoring tweets and posts under her name," the judge wrote. "As such, Maremont alleges a commercial injury based on defendants' deceptive use of her name and likeliness."
Internet law expert Venkat Balasubramani adds that the Fredman firm might also have broken a federal privacy law, the Stored Communications Act. "I'm not sure what [Susan Fredman Design Group] was thinking, but its head was not on straight when it accessed and continued to post from its hospitalized employee's Twitter and Facebook accounts," he writes. "This pretty much fails every common sense test there is out there."