Does Failing to Remove a Former Employee From a Company Website Constitute Unlawful Appropriation?

A recent decision from the U.S. District Court for the District of Minnesota clarified that an employer’s failure to remove a former employee from a company website does not constitute unlawful appropriation, unless it’s intentional.

Appropriation is one of three torts that fall under the umbrella term of invasion of privacy.  The tort occurs when one person appropriates to his or her own use or benefit the name or likeness of another.

In Wagner v. Gallup, Inc., the plaintiff alleged that his former employer was liable for appropriation because it failed to update a reference to him on its website from a “principal of Gallup” to a “former principal of Gallup” after his departure.  The plaintiff conceded that he consented to the employer’s posting of information about him on the website at the time it was made and during his employment.  Civ. No. 12-CV-01816-JNE-TNL (D. Minn., June 20, 2014).

The court dismissed the plaintiff’s claim for appropriation because there was no evidence that the failure to remove the website’s reference to the plaintiff was intentional.  The court explained that “the appropriation tort is an intentional one,” and that the plaintiff must show the defendant “acted intentionally in appropriating his name to prevail on his appropriation claim.”  Because there was no evidence that the employer acted intentionally, the plaintiff’s claim failed.  The court also noted that plaintiff’s claim would likely fail because there was no evidence of damages.

Takeaway:  In most cases, failing to remove an employee’s name or image from a company website after termination will not support a claim for appropriation, unless there is evidence that the appropriation was intentional.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on July 2, 2014, in Privacy Rights, Technology and the Workplace and tagged . Bookmark the permalink. Leave a comment.

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