LinkedIn is now recognised as a very important business tool but the rise in the use of social media has been so fast that there is very little law about who owns the accounts when they are used for business and indeed the information which is put on to or gathered via these sites.
LinkedIn makes it clear, in its terms and conditions, that an account is personal to the account holder. When an account is used during employer’s time, on their system and to promote their business does the employer have any rights to ownership of the account when the employee leaves employment?
Confidential Information
During employment all employees are bound by an implied duty of good faith and fidelity which encompasses the duty to act in the employer’s best interests and not to disclose confidential information.
Employment contracts should include a similar express provision protecting the employer’s confidential information from disclosure or misuse both during employment after termination. There should also be provisions requiring the return of company property on termination of employment. Where does this leave the employee’s LinkedIn account?
High Court Case
A recent ruling has shed some light on the extent to which employers can control or access a former employee’s LinkedIn account to protect themselves when an employee leaves.
Facts
Three employees left their jobs to join a competing business which they had set up before they resigned. Before they left the company the ex-employees had been responsible for dealing with LinkedIn groups on behalf of their employer. The groups were operated for the employer’s benefit, promoted its business and the operation of the groups was carried out during working hours using the employer’s computers.
Once she had left, the employee who ran the groups continued to do so but instead of continuing to promote her former employer’s interests via the groups, she used the groups to further the activities of the new competing venture, including using contacts to invite people to the launch of the new business. The High Court granted an interim injunction which prevents the three ex-employees from using their former employer’s confidential information until the full court hearing. The result of this was to effectively make the former employees hand over control of the LinkedIn groups to their former employer.
As the decision to grant an interim injunction is not the High Court’s final decision in the matter, the decision leaves many questions unanswered about when employers will be able to gain access to and control of social media accounts, such as LinkedIn, used by employees during the working relationship and following its termination.
Contracts and policies are important
This case highlights the importance of employers ensuring that contracts of employment have been drafted with social media in mind and that they should be consistent with any social media policies in place. Confidentiality clauses and post-termination restrictions can be tailored to ensure they deal with social media and ensure that any proprietary rights that may be linked to social media accounts or groups are assigned to the employer via express provisions in the employee’s contract.
Practical Issues
- Social media accounts – try to assert as much control as possible over an employee’s account from the start. e.g. use your businesses address as the employee’s address and choose the password for them.
- Policies – draw up social media policies to require employees to promote your business on LinkedIn and other sites.
- Contracts – ensure post termination covenants and confidentiality provisions are in place and that employees are specifically required to return all social media contacts, passwords and access details for the management of any groups on termination.
- Compromise Agreements – ensure as part of any compromise agreement that an employee is required to hand over all contacts and delete all social media accounts.
For any questions relating to Social Media usage in the work place, please contact Christopher Ainsworth at christopher.ainsworth@freeths.co.uk
