Owning social media data

The growth and importance of social media is apparent, from Facebook and Twitter to more professionally focused networks such as LinkedIn. All these platforms play a key role in the way we do business and network in today’s world.

Employers need to be aware of the potential pitfalls, as well as the benefits and opportunities, of social media. LinkedIn enables individual employees to make connections with their clients and prospective clients, and so problems often arise when the employee leaves the business. As a LinkedIn account is (on the face of it) personal to the employee, the contact details contained in the account are fully portable and therefore automatically follow the employee to their new employer, who may be a major competitor.

Most employees see their LinkedIn profile as an individual account, especially as those details can be viewed by any member of the public who is connected with that particular profile. The notion that their employer has any rights or ownership over it – or its contents – can be somewhat confusing.

However, employers will of course want to protect themselves. At this stage, it is important to distinguish between the account itself and the data contained within it. One important factor in determining who owns the account and the details of the contacts contained within it is whether the account (or contact) was ‘made during the course of employment’. If it was, then an employer will have scope to argue that this contact list is the property of – and confidential to – the business; therefore, if the employee discloses this data or takes it with them to a competitor following termination of their employment, this would infringe the employer’s database rights.

An employee could also be in breach of their express or implied duties under their contract of employment. However, in practice, there will frequently be a mixture of business and personal contacts within an individual’s LinkedIn contacts list, which can create uncertainty.

Grey areas

The increased use of LinkedIn has created a number of grey areas in which the courts have inevitably had to intervene. In one of the first cases concerning LinkedIn, Hays Specialist Recruitment v Ions [2008] EWHC 745 (Ch), back in 2008, the court decided (perhaps unsurprisingly) that deliberately migrating details of business contacts from the employer’s confidential database to their personal account at LinkedIn is likely to be a breach of confidentiality.

In the more recent case of Whitmar Publications Ltd v Gamage [2013] EWHC 1881 (Ch), the High Court considered whether a former employer can exert some control over an employee’s LinkedIn account after the termination of his or her employment in order to protect the business. The court found that Whitmar had a right to the data contained in the particular LinkedIn groups, and, as a result, the former employee was ordered to provide details to enable Whitmar to access and manage these groups.

Practical steps

In order to protect themselves, employers should consider including express obligations within employees’ contracts of employment which:

• Make it clear that LinkedIn – along with other online professional networking sites – is to be used in the course of employment for the benefit of the employer;
• Assign to the employer any proprietary interest in professional contacts added to an employee’s LinkedIn account during the course of their employment;
• Require employees to provide their employer with user names and passwords of their LinkedIn and any other relevant accounts, and to delete business contacts or close down the account following termination of their employment;
• Oblige employees to replicate LinkedIn business contacts on the employer’s own databases and monitor the situation to ensure this actually happens;
• Include appropriately drafted post-termination restrictive covenants (such as non-compete, non-dealing, and non-solicitation clauses) to prevent confidential information and business contacts being taken by employees for use with competitors when they leave; and
• Include a garden leave clause to help protect the business by ensuring employees cannot use or update their LinkedIn account during any period of garden leave imposed. Although this does not address the question of who owns the account or its contents, it does help the employer by buying time for them to strengthen their relationship with clients and suppliers, thereby diluting the impact any departing employee will have if they do subsequently approach such contacts.

Employers should also take steps to ensure employees’ LinkedIn accounts are set up and maintained using the employer’s IT systems, and provide guidance on the use of the account.

The law in this area is fast moving and constantly developing. Employers should take a proactive stance now to help protect their business, not only to avoid potential future litigation but also to protect key client relationships. SJ

Image: Quka / Shutterstock.com

Andy Williams, pictured, is a legal director and Emily Chalkley an associate solicitor at Charles Russell Speechlys

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