Employers and employees are increasingly promoting themselves and networking through electronic means and social media, for example through Twitter or Facebook. Similarly, in a short space of time “LinkedIn” already 225 million members in over 200 countries and is now a particularly popular way for employees to promote themselves and to connect with relevant contacts.
As those familiar with LinkedIn will know, as you begin to add “connections” to your account, whether they be personal contacts or contacts you meet through work, the LinkedIn software stores in your account these names, contact information and other details about those contacts. One issue that is very topical at the moment concerns the ownership of that information, particularly when an employee is leaving your employment.
Recent UK case
A recent decision of the English Hi gh Court begins to answer this question. Judgment in the case of Whitmar Publications Limited v Gamage and others was issued in July of this year. The Defendants were three former employees of Whitmar Publications Limited who had left employment and set up a business (the fourth Defendant) competing with Whitmar. Whitmar alleged, amongst other things, that its confidential information had been used unlawfully in setting up this competing business. It sought from the High Court a springboard injunction and other springboard relief (see our quarterly Employment Update of 25 July 2012 for more on the topic of springboard injunctions).
One of the Defendants, a Ms. Wright, had maintained a number of LinkedIn groups for Whitmar whilst she was a Whitmar employee. These accounts promoted its business and contained details for customers and contacts of Whitmar, but upon leaving employment she refused to hand over the passwords or access details to these accounts. The evidence in fact revealed that after the Defendants left Whitmar’s employment, the LinkedIn groups were accessed and appeared to have been used as the source of contact information for a press release advertising the new competing business.
Ms. Wright claimed that she had maintained the Whitmar LinkedIn accounts as a “hobby” and that they were personal to her, and for that reason the information should be considered hers. The Court gave very short shrift to this argument and determined that she had maintained the accounts as part of her employment duties. There was therefore a strong case that the information in the LinkedIn accounts was the property of, and confidential to, Whitmar and the Defendants were required to provide Whitmar with exclusive access to those LinkedIn accounts (together with the various other relief sought).
It should also be noted that in this case the Court determined that the LinkedIn accounts were operated and maintained by the employee as part of her employment duties. The question that has not yet been determined is: What happens to LinkedIn accounts that are genuinely personal to departing employees i.e. where their employer has not required them to operate or maintain such accounts? For example, such a LinkedIn account would likely contain contact information for the employee’s personal contacts as well as details for those contacts that the employee has built up because of, and during, his employment. If that employee leaves employment and joins a competitor for example, once he logs into his LinkedIn account he will have immediate access to a list of contacts and contact details rela ting to his previous employer’s “connections”.
Until this question has been sa tisfactorily determined by the Irish Courts, it is recommended that employers make clear in their employment contracts and/or Social Media Policy that any information relating to contacts or customers remains confidential to the employer at all times and that any such information, whether contained in LinkedIn accounts or elsewhere, must be returned or deleted upon termination of employment. Such a provision should be tied in with the employer’s policies, procedures and contractual provisions relating to confidentiality in general, and if it is made a term of the employment contract it will give an employer the right to allege breach of contract and seek injunctive relief if necessary.