With over 200 million users worldwide, many employers see the benefits of their employees being active on LinkedIn. However, given that professional networking sites, such as LinkedIn, are sometimes seen as promoting a particular employee rather than their employer, confusion can arise in determining the ownership of such accounts and the contact lists created. In the employee’s favour, LinkedIn’s user agreement creates a contractual relationship between LinkedIn and the user, which is often the employee. However, many employers seek to claim ownership where the account and the contacts within the account have been created and developed during the course of an employee’s employment.
The issue of LinkedIn accounts has recently come before the High Court in the case of Whitmar Publications Ltd v Gamage  EWHC 1881 (Ch). The case involved three employees of Whitmar, Mr Gamage, Ms Wright and Mr Crawley, who set up a new company, “Earth Island”, in competition with Whitmar. Once discovered, Whitmar brought proceedings against the ex-employees seeking, amongst other things, an interim injunction to restrain the use of its confidential information.
It was alleged that the trio had misappropriated and misused confidential company information, in particular, four LinkedIn groups. Ms Wright was responsible for dealing with the LinkedIn groups as part of her employment duties at Whitmar. The LinkedIn groups were operated for Whitmar’s benefit and promoted its business. After she left Whitmar’s employment, they had no way of accessing the accounts. It was contended that Ms Wright refused to provide Whitmar with the user name, password and all other access details for the four LinkedIn groups and that the trio was using the groups to benefit Earth Island. Ms Wright claimed that the LinkedIn groups were personal to her and just a hobby, despite the fact that she did not have a computer at home.
The interim injunction was granted by the Court. The Order obtained by Whitmar included an obligation on the trio to assist the company so it had “exclusive access, management and control” of the LinkedIn groups.
As this was only an application for interim relief, the High Court only had to decide whether or not there was a serious issue to be tried. As such, the court was not required to conduct a detailed analysis of the ownership of LinkedIn accounts and contacts. The decision does, however, provide some certainty in relation to an employer’s interest in, and ownership of, the contacts on a LinkedIn group in circumstances where (i) an employee has been responsible for maintaining the LinkedIn group as part of their employment duties (ii) the LinkedIn group has been operated for the employer’s benefit and (iii) the employee has used the company’s computer to maintain and create contacts.
This case does not answer some of the trickier questions surrounding this issue, such as an employer’s interest in an employee’s personal LinkedIn profile, or what happens when a new employee brings to their new employer a LinkedIn account with numerous contacts. To manage the risks, employers should implement, or review their existing policies to:
- refer to the management of professional networking accounts as being an express duty of the employee’s employment;
- require employees to use only their company email address as a point of business contact (i.e. not a separate contact address through LinkedIn or other online user group);
- require employees to copy all contacts onto the employer’s own databases (there are provisions in The Database Rights (Bailiwick of Guernsey) Ordinance 2005 which confirm that a contact list stored on a corporate system belongs to the employer);
- make it an express provision within the employee’s terms and conditions that all professional contacts added to an employee’s LinkedIn account during the course of their employment will belong to the employer; and
- impose express duties that an employee will operate their LinkedIn account for the employer’s benefit.
The more complex issues surrounding LinkedIn accounts are still to be tested in detail before the courts, but by following these steps, it will at least provide a starting point from which to argue that professional networking accounts, such as LinkedIn, and more importantly the contacts within the accounts, belong to the employer.