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The England and Wales High Court has ordered a woman to return access, management and control of four LinkedIn Group accounts to her former employer, Whitmar Publications.  Abigail Vipond, Associate at HopgoodGanim joins us to discuss.  Abigail welcome to BRR Media.

Hi Jacqui thank you for the invite.

So Abigail can you tell us what happened in this case?

Yes certainly, this is a really interesting UK decision.  It dealt with that not uncommon situation where a group of employees decides to leave their existing employer and subsequently go off and set up a rival business.  Now in this case the old employer, Whitmar, was unsurprisingly rather peeved about the departing employees' actions, particularly when it subsequently transpired that they may have acted in ways which breached their obligations to Whitmar in relation to confidentiality of information and good faith and fidelity.  Now not only did they go on and set up a rival company, they also attempted to solicit certain employees of Whitmar to join them in their new business and use Whitmar's own LinkedIn group accounts to further their interests of their new venture.  Now the discussion in this case about the employees' use of Whitmar's group LinkedIn accounts is I believe particularly interesting.  As we know the potential for social media as a competitive market in business tools for business is huge nowadays, Facebook, Twitter and LinkedIn amongst other sites are often relied upon in organisations as part of their marketing strategy.  Now in this case one of the departing employees it appeared had used Whitmar's LinkedIn groups to source email addresses which they used to then go on to send a press release and an invite to social events in respect of the new rival company that they'd set up.  Now when Whitmar found out about this they were not happy, asked for the user name, passwords etcetera to be returned to them, but the departing employees refused to return them claiming that the LinkedIn groups were personal to them and just a hobby.  Now Whitmar was pretty furious and rushed to the High Court to seek an injunction to stop those individuals from using their confidential information and they relied upon that duty of good faith and fidelity that was implied in their employment contracts.  The England and Wales High Court did accept Whitmar's position and made an order restraining the former employees from using the confidential information and ordered them to return the access details to the LinkedIn accounts to Whitmar.  So it's an interesting case, it's important to bear in mind that it was a group account here and we weren't dealing with a personal LinkedIn account; we do believe that Whitmar may have had a harder hill to climb to get an order for user names and passwords to be handed over for a personal account, but nevertheless it is a very interesting case.

And you just mentioned before that it is a UK precedent, what does this case mean for Australia?

It was a UK decision and therefore it's not binding on Australian courts, however the reasoning behind the decision does provide us in Australia with a really good guide as to how Australian courts would treat similar issues, the law between the two jurisdictions in this area is very similar and it's quite feasible that if these matters were tried in Australia the same legal principles would apply and therefore a similar decision could result.

Well as you touched on previously, through the proliferation of use of social media in a professional context these issues are coming up more and more what are some key considerations for employers who find themselves in similar situations?

Given the rapid development of technology in this area I think the key considerations here are that employers really need to be proactive to protect their own business interests.  It's no long possible for businesses to bury their head in the sand in relation to social media advances, it's happening, it's happening now and it does require attention.  So I think the way to do that is that employers may wish to develop and revise post employment restraints in employment contracts or carry out an audit in their social media policies to ensure that they deal with situations such as this.  Furthermore employers may wish to make it clear to employees either at the induction stage or through training exactly what their expectations are in relation to social media.  It's certainly a fast moving area and employers often do feel like they're faced with a minefield in relation to social media, but they should take some comfort with the fact that the same legal principles that have been around since year dot will continue to apply in relation suspected breaches in relation to social media.  I mean here we are just dealing with electronic contacts in a social networking site as opposed to the old fashioned client list in hard copy for example a diary or a rolodex.  Like I said the key is to be proactive and manage the risk and if an employer is in any doubt about their social media policies or their contracts of employment, the best course of action would be seek legal advice as firms like HopgoodGanim can advise on such matters.  Only time will tell us exactly how big a headache this will be for employers.

Well a really interesting space to watch there Abigail thank you so much for joining us.

Thank you very much.

That was Abigail Vipond, Associate at HopgoodGanim.  Listeners if you have any questions for Abigail you can send them through either using the panel on your screen or by sending an email to law@brrmedia.com.