Social media sites such as LinkedIn are increasingly being used by employers to develop business and create new opportunities in the workplace. According to Rosling King LLP, whilst LinkedIn is undoubtedly a valuable business and marketing tool, the risk that employees will use LinkedIn to compete with their employer following termination, exposes employers to a whole host of problems.
Partner Niki Avraam explains: “The recent High Court judgment in the case of Whitmar v Gamage and others should provide some comfort to employers attempting to pick their way through the minefield of how their employees use social media. The judgment sends out a clear message that employees leaving a company cannot plunder the LinkedIn contacts their employer builds up and manages, particularly when they are to be used in direct business competition.
This case concerned a group of former Whitmar employees who conspired to leave to set up a competing business. Whitmar commenced proceedings on the grounds that the ex-employees were competing with their employer during employment. The company also sought to restrain the former employees from using the confidential information that they were alleged to have misappropriated; this included LinkedIn groups that had been managed by one of the defendants on Whitmar’s behalf. The High Court granted injunctive relief against the former employees, holding that LinkedIn contacts can constitute confidential information.
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So has some light been shed on what is a seemingly intractable problem for LinkedIn? It prides itself as being a personal and professional network and therein lies the problem. The individual owns the account but in the main, it is used to promote and reflect one’s professional life. Naturally, the result is an entwined network of professional and personal connections.
To date, UK caselaw addressing the pertinent issue of who owns LinkedIn contacts is thin on the ground. The earlier case of Hays Specialist Recruitment (Holdings) Limited and Another v Ions confirmed that client contact information did not necessarily lose its confidential nature by being uploaded to LinkedIn. Though the Court made no finding as to who owned the LinkedIn account, it did recognise the potential for LinkedIn to be abused by employees looking to reap the benefits of their employer’s confidential information.
The Courts stateside have seen far more litigation over the alleged misuse of LinkedIn and other social media outlets. Sadly, however, these cases fail to provide further guidance on this issue, highlighting more the difficulties over enforcement as the Courts display a reluctance to attach a defined value to LinkedIn contacts.
The condundrum of who owns LinkedIn contacts has yet to be solved by caselaw. Until it is, employers choosing to use LinkedIn to advance business opportunities through business accounts, should clearly define what it regards as being acceptable use of LinkedIn. There should be an express requirement on employees to operate the account for the benefit of the employer and guidance should be provided in social policy documents, on general use. Termination and post-termination restrictions contained in employment contracts may also need a revamp to take account of the risks posed by LinkedIn.”
