Social media applications such as Facebook, LinkedIn and Twitter can be valuable tools for promoting business and for professional networking.
Facebook now has over 1 billion users globally, while LinkedIn, the world's largest online professional network, reached a milestone last month, announcing it that it has reached one million members in New Zealand. LinkedIn now has over 259 million members globally and two new users join every second.
Facebook and LinkedIn allow registered users to maintain a list of contact details of people with whom they have some level of relationship. However, the legal position in relation to the ownership of any connections made during employment is uncertain. If the parties do not determine this issue at the outset of the employment relationship, this can lead to disputes when an employee leaves a company to join a new employer.
In the case of Whitmar Publications v Gamage and ors which was heard earlier this year in the UK, one of the issues for consideration by the English High Court was the question of ownership of LinkedIn connections.
Three Whitmar employees left the organisation and set up in competition. Whitmar alleged that its confidential information had been used unlawfully in setting up the competing business.
One of the employees, Ms Wright, had maintained a number of LinkedIn groups for Whitmar, which promoted its business and contained details of customers and contacts but on leaving she refused to hand over passwords and access details to these accounts. She claimed that she had maintained the accounts as a "hobby" and that the information should be considered hers. However, the High Court held 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.
In a separate ruling by a court in the United States, in the case of Eagle v Edcomm, Dr Eagle issued proceedings against Edcomm for unlawful use of her LinkedIn account after the termination of her employment.
Dr Eagle, the former CEO, had shared her account details with other employees who assisted her in maintaining the account, which allowed Edcomm to effectively gain control of the account following her departure.
The Court found that Edcomm encouraged the use and creation of LinkedIn accounts but had no clear ownership polices in place. While Dr Eagle succeeded in a claim for invasion of privacy, the court rejected a counterclaim by Edcomm, as there was no evidence that Dr Eagle's contacts were developed through an investment of Edcomm time and money, as opposed to her own time and past experience. There was also no evidence of Edcomm's ownership of the account.
Until the courts determine the position conclusively in New Zealand, the uncertainty as to ownership is likely to continue unless the employer has a social media policy in place, or the parties agree at the outset of the employment relationship who will own contact information created or maintained during the course of employment.