How Can an Employer Protect their Social Media Contacts When an Employee Leaves?
LinkedIn is a perfect example of how important social media in the workplace is to the development of modern business. LinkedIn allows a business to communicate with its existing clients and to market to prospective clients. The contacts of a LinkedIn account will become crucial to a business.
Who owns LinkedIn contacts?
As the use of social media still continues to grow, many businesses have not taken steps to protect their LinkedIn contacts and to clearly set out how these contacts can be used by employees, during and post employment. This is especially important given LinkedIn’s position that the rightful owner of an account is the individual user, that is, the employee, even if they are using the software on behalf of a company.
Internationally, there have been a few cases on the use of LinkedIn accounts post employment:
- In an American case of Eagle v Morgan, Dr Eagle, the founder of Edcomm was terminated shortly after the sale of the company. Edcomm subsequently took control of her LinkedIn account which had amassed over 4000 contacts. Edcomm changed her password and substituted her name, picture, education and experience with that of her replacement. The Court held that Edcomm was guilty of invasion of privacy, misappropriation of identity and an unauthorised use of name.
- In a UK case of Hays Recruitment (Holdings) Ltd & Anor v Ions & Anor a recruitment consultant copied a list of Hays’ clients so as to connect with them once he set up his own recruitment agency. The Court held that because Hays encouraged the use of LinkedIn in the performance of his duties, the connections were confidential information. The employee was ordered to hand over the connections.
- In a UK case of Whitmar Publications Limited v Gamage & Ors several former employees were using LinkedIn groups established by Whitmar to solicit clients for a new business they had set up. The Court granted Whitmar an injunction that prevented the employees from using the LinkedIn contacts. The contacts were considered Whitmar’s confidential information and the Court held that the conduct of the employees was in breach of the duty of good faith.
What Steps can an Employer Take?
Businesses need to be proactive in protecting their LinkedIn contacts. A business may consider:
- Implementing and enforcing a social media policy about the use of LinkedIn and the expectations of the employer;
- Implementing procedures for updating the employer’s central database should information relevant to the business be obtained from a LinkedIn contact (eg change in phone numbers or a contact person);
- Issue employment contracts that:
- Restrict the use of LinkedIn contacts after the employment relationship has been terminated;
- Create a confidentiality clause with respect to LinkedIn contacts obtained during the course of employment.
Should you require any assistance in protecting your business in this emerging world of social media and any other legal issues relating to social media in the workplace do not hesitate to contact our experienced Workplace Law Team.