As businesses embrace the potential for social media to grow their market share, they often overlook the need to update their confidentiality policies and employee agreements. This could be catastrophic if a key employee were to leave and retain exclusive access to company accounts on Facebook, LinkedIn, Twitter and the like. Trade secret litigation addressing ownership rights to social media contacts can provide guidance to employers fashioning new policies and agreements.
This past spring a federal court in Illinois addressed an employer’s ownership interest in social media group membership lists and communications. In CDM Media Inc. v. Robert Simms, the employer asserted a trade secret misappropriation claim against its former employee, Simms, for refusing to complete the paperwork needed to change the contacts for a LinkedIn group with 679 members, and keeping the LinkedIn group membership list and communications. Simms had been the point person for the LinkedIn group, which was a private online community of chief information officers and IT executives. The court ruled that the employer had adequately pled a misappropriation claim as to the LinkedIn group membership list but had not done so for the LinkedIn group’s communications. Even for the LinkedIn group membership list though, the court was guarded in its ruling, simply saying “too little is known about the contents, configuration, and function of the LinkedIn group at this time, to conclude as a matter of law that its list of members did not constitute a trade secret.” In other words, this employer needed to prove a number of critical facts to succeed on this claim.
