What would you do if an employee resigned and took all your LinkedIn contacts with him?
Who owns those contacts anyway?
What if the contacts list contained many good customers of yours and your former employee is going to a direct competitor?
What do you do if your former employee will not give you log in details to one of your social media accounts?
A further complicating factor is when the employee uses his own phone, computer, tablet device for work purposes.
Once he’s gone from the employment do your contacts disappear too?
This new, thorny question of who owns social media accounts and contacts has become increasingly important in the world of work and business.
Need some pointers about how to protect yourself and your business?
Firstly, let’s take a look at the situation in the UK because this is a new area and there is no specific case law in Ireland which has dealt, yet, with ownership of social media contacts.
We can take some guidance from the UK, though.
Whitmar Publications Ltd v Gamage, a UK High Court case from 2013.
This case shows that courts are likely to find that contacts in an employer’s LinkedIn account belong to the employer, even if the account may have been maintained by employee on behalf of the employer, and that courts may grant injunctions where former employees attempt to misuse such contact information following the end of the employment relationship. Even though the former employees had no written contract the employer was able to rely on the implied duty of good faith and fidelity which the employees had breached in taking steps to set up the rival business.
Another case worth looking at is Hays V Ions, a 2008 UK High Court case.
Mr Justice Richards last week ordered Mr Ions to disclose his LinkedIn business contacts requested by Hays and all emails sent to or received by his LinkedIn account from Hays’ computer network.
A Hays spokesman said: “Hays values its database of client and candidate information. Along with the consultants who work for us, it is the cornerstone of our business. Information theft is a serious issue and we will not hesitate to take appropriate action to protect our data.
“Over the course of the past 24 months, Hays has brought a number of claims against former employees and competitor agencies to protect its business interests. As advances in social networking sites and technology generally become more and more sophisticated, so too are the legal strategies necessary to protect our data.
(Source: The Telegraph)
It is important to recognise that this is a developing area and many of these decisions will be very fact specific to the particular case.
In deciding these types of cases concerning ownership of contacts, factors that Courts are likely to consider are:
- Who created the account?
- Who maintained it?
- Are the contacts in it predominantly personal or business related?
- Does the contract of employment make reference to ownership?
- Was the employer logo or branding used in creating the profile for the account?
How to Protect Your Business
- Put an express term in the contract of employment dealing with this issue viz who “owns” the account;
- Have a social media policy which deals specifically with the contacts issue;
- If employee maintains account make it a contractual term that you have log in details at all times;
- Ideally, you should create (or have created) the account;
- Define trade secrets and confidential information in your contract of employment to include social media contact details;
- Have a robust restrictive covenant clause in your employment contract which covers contacting clients or employer contacts through social media channels.
In summary, a well drafted contract of employment and social media policy will protect you and your business in respect of your valuable contacts.
Your social media policy should not just deal with your contacts, though. There are other serious issues which should be included, such as inappropriate use of social media by your staff.
I will deal with this in a separate article as it is a growing area due to the proliferation of social media channels.