Constance Yu and Ellen Liu write “Trade Secret Litigation Over Social Media: Is it Worth the Cost? ” for the CMCP E-NewsletterJuly 2013
With the continually increasing popularity of social media websites like Facebook, Twitter, and LinkedIn, where members can be connected to friends, family members, co-workers, clients, and potential clients all by logging in to one account, it is understandable that companies and employers are concerned about the security of their trade secrets. However, the distinction between what is part of an employee’s personal profile and what portion may belong to the employer is not an easy one to establish. In the past few years, a number of lawsuits have been filed, by both employers and employees, alleging misappropriation of social media accounts under trade secret law. However, a court or jury has yet to find at trial that a LinkedIn profile or a Twitter account contains protectable trade secrets capable of being quantified into recoverable damages. This article summarizes a few of the recent cases involving social media and discusses some of the issues to consider when litigating these kinds of trade secret actions.