The Plaintiff, a professional Chicago interior designer, was the director of marketing, PR and e-commerce for the Defendant, a well-known interior designer. Maremont v. Susan Fredman Design Group, Ltd., 2011 U.S. Dist. LEXIS 26441, at *4 (N.D. Ill. Mar. 15, 2011).
After being injured in an accident, the Defendant impersonated the Plaintiff on Facebook and Twitter. The Plaintiff sued and the Defendant brought a motion to dismiss. Maremont, at *1-2.
The Factual Focal Point
The Plaintiff had a popular following on both Facebook and Twitter. All social media messages had her image on them. Additionally, the Plaintiff maintained a blog hosted on the Defendant’s blog. Maremont, at *5.
The Plaintiff was hit by a car and hospitalized with extensive injuries, which included surgeries, physical rehabilitation and recovering in a wheel chair. Maremont, at *5-7. While in the hospital, she was told the Defendant were promoting themselves with the Plaintiff’s Facebook and Twitter accounts. Maremont, at *6.
The Plaintiff told the Defendant to stop “impersonating” her online, because 1) it made it look like the Plaintiff had not been hurt badly and 2) she had returned to work. Maremont, at *6.
The Defendant continued impersonating the Plaintiff on both Twitter and Facebook. Id.
After several months of recovery, the Plaintiff learned the Defendant was still impersonating her on her social media accounts. Maremont, at *7. The Plaintiff changed her passwords on her accounts, which prompted the Defendant to text the Plaintiff. Id. After the Plaintiff confirmed she changed her passwords to the Defendant, the Defendant and her employees stopped visiting or contacting the Plaintiff. Id.
Accent Colors of the Law: Lanham Act, Right to Publicity & Common Law Right to Privacy
A “false endorsement” is “…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 *9, citing, Stayart v. Yahoo! Inc., 651 F.Supp.2d 873, 880-81 (E.D. Wis. 2009).
The Court explained that the Plaintiff alleged sufficient facts to survive the motion to dismiss, because 1) she alleged she had a popular following on Twitter and Facebook related to her commercial work and 2) the Plaintiff was in commercial marketing when the Defendant used her social media accounts. Maremont, at *10.
As such, the Court found the Plaintiff alleged a commercial injury based on the Defendant’s use of the Plaintiff’s Facebook and Twitter profiles. Id.
Right to Publicity
The Plaintiff alleged the Defendant violated her rights under the Illinois Right to Publicity Act, because the Defendant did not have her written consent to use her likeness. Maremont, at *11.
The Defendant challenged the Plaintiff’s “right to publicity” claim as being untimely under state law, because the one-year statute of limitations had run from when the Plaintiff first learned of the use of her social media profiles. Maremont, at *11.
The Court found the Plaintiff’s claim timely, because under the “continuing injury” doctrine, because of the several month period the Defendant used the Plaintiff’s social media profiles. Maremont, at *13. The Plaintiff filed her lawsuit within one year of her text message exchange with the Defendant about changing her passwords, which was the end of the alleged infringement. Id. As such, the Plaintiff’s claims were timely. Id.
Common Law Right to Privacy Claim
The Defendant was successful in the dismissal of the Plaintiff’s Common Law Right to Privacy Claim, because the Illinois Right to Publicity Act replaced common law causes of action. Maremont, at *14.
The Plaintiff claimed two additional common law torts: 1) unreasonable intrusion upon the seclusion of another and 2) a claim based on publicity that reasonably places another in a false light before the public. Maremont, at *14.
The Court granted the motion to dismiss on the intrusion into her “digital life,” because the Plaintiff did not develop the argument whether such a claim is actionable. Maremont, at *14-15.
The Plaintiff’s “false light” claim also failed, because she did not sufficiently allege actual malice or special damages. Maremont, at *15.
Bow Tie Thoughts
We will see more cases involving the blending of personal lives and professional business development. These issues present intriguing questions of law and electronic discovery challenges.
Consider an employer requiring their employees to use their personal social media profiles to promote the company. Does that give an employer the right to highjack personal social media profiles if the employee is hospitalized? How about if the employee leaves the company?
All of the discovery in this case is digital: Social Media and Text Messages. Both are high transitory and can present preservation challenges. Attorneys must consider social media in their electronic discovery planning, from collection and review. While Outlook based email is very established, “cloud” based social media discovery cannot be ignored.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.