Like millions of employees, your sales and marketing staff may be using social media for business as well as personal contacts. Perhaps you have actively encouraged them to do this as part of their job. But at the end of the day, who owns the database or the information on it? This question recently became the subject of legal debate when the High Court addressed the status of LinkedIn contacts.
Our guest blogger, Andrea London of Rosenblatt Solicitors explains…
Almost all businesses now use some form of social media for their sales and marketing: they can be extremely effective and better still, are free. However, those same social media platforms – such as LinkedIn, Twitter and Facebook – are often also concurrently used on a personal basis by employees. As a result, the line between a ‘professional’ account and a ‘personal’ one easily becomes blurred. The question of ownership of the account, or more importantly the contacts contained in an account when an employee parts ways with his or her employer, has become a hotly contested legal one.
This issue of whether LinkedIn contacts created during a period of employment amounts to confidential information which belongs to the employer came before the High Court in the summer 2013. In very summarised terms, the case of Whitmar Publications v Gamage, Whitmar sought an injunction against several former employees, one of whom had maintained Whitmar’s LinkedIn company contacts during his employment and who then subsequently sought to use the information he had collated on Whitmar’s clients to help launch a rival business. The injunction sought was granted as an interim measure pending trial on the basis that it appeared to be a misuse of Whitmar’s confidential information and a breach of the implied duty of good faith. This decision (and a later one in a case involving Hays Specialist Recruitment) appears to indicate that English courts are very willing to consider the use made of a LinkedIn account by an employee during and after their employment as evidence of their breach of confidentiality and/or their reasonable restrictive covenants.
Whilst that may be the case, the question of ‘ownership’ of a LinkedIn account in such circumstances remains unhelpfully vague. It is LinkedIn’s view, as clarified in its user agreement, that ownership of a LinkedIn account is personal to the individual in whose name it is registered. This is regardless of which email address is used to register the account. Accordingly, businesses should do all they can at the outset to protect and clarify their position with their employees to avoid the risk of (expensive) disputes arising later on.
Some practical suggestions might include that you:
1. Ensure your company has a clear and effective Social Media Policy so that employees are clear on their own and the company’s position, and most importantly, what the company will do (both during and after termination of employment) if confidential company or client information gained during their employment is added to their personal accounts;
2. Ensure that your company’s LinkedIn account is not opened and then maintained (particularly if this is over a long period of time) by a sole individual;
3. Make it a requirement for employees to open a ‘company’ account for business clients using their work email address. From the outset, make it clear that it is the business which owns that particular account and all contacts and information in it. Ensure this account is regularly monitored and any costs/charges pertaining to the account are met by the company.
Legal Disclaimer: This article should not be taken as definitive legal advice on the subject covered. If you require legal advice on any of these matters please contact Andrea London of Rosenblatt Solicitors on 020 7955 1433 or email firstname.lastname@example.org