It is increasingly common for employees to use social media such as LinkedIn as part of their work and often they use personal accounts for that purpose. But who actually owns those accounts?
This is not an easy question to answer, but a recent court case has started to clarify the situation.
According to the High Court ruling in a 2013 legal action taken by Whitmar Publications, if the LinkedIn account is established in the course of employment and used to market and advance a company’s business activities, then it may be the property of the employer.
This case involved three employees who were all long-serving senior employees of Whitmar Publications. The three all resigned from their positions in January 2013 to set up a competing company, Earth Island.
It soon became apparent after they left that the employees had taken steps since August 2012 to compete with Whitmar, including using LinkedIn groups managed on behalf of Whitmar to market the new company.
One of the employees, Susan Wright, argued that the LinkedIn groups were personal and a hobby and so not linked to Whitmar’s business. Wright refused to provide Whitmar with the user name and password and continued to use the account and the contacts it contained after her resignation.
Unsurprisingly, Whitmar was unhappy with this and commenced proceedings against the former employees, claiming damages and also seeking an injunction to prevent them from using or disclosing confidential information.
The High Court made various findings in respect of the employees’ preparations to compete. However, in relation to the ownership of the LinkedIn groups, it held that Wright’s duties as an employee included responsibility for dealing with LinkedIn groups, which were operated for Whitmar’s benefit to promote its business.
The High Court found that – despite the fact that the LinkedIn groups had been set up by Wright and contained business and personal contacts – the groups were still the property of Whitmar. The High Court therefore ordered the former employees to hand over access, management and control of the LinkedIn groups to Whitmar.
You may be reading this and thanking the court for some clear guidance at last. But while this case is useful, it does not provide answers to all the issues.
In particular, there is a still a question as to whether employees can even consent to their employer owning or having access to their LinkedIn account and/or contacts.
LinkedIn’s user agreement creates a contractual relationship between LinkedIn and the user - typically the employee - which restricts the user from allowing others access to or use of their accounts. So if an employee agrees to allow their employer certain rights to their account and/or contacts, the employee could be acting in breach of the contract with LinkedIn. This means that whatever an employer may say in its LinkedIn policy, it may not be able to establish that it owns the account.
Other issues remain, such as whether contacts on LinkedIn can be classed as confidential information and whether a list of contacts can amount to a database which can be protected.
Notwithstanding the unanswered questions, this case is a step forward and the court has provided a decision which should assist employers. But companies would still be wise to continue to regularly review their policies so they do not become outdated.
The continued use of provisions dealing with the ownership of employee LinkedIn accounts and groups in employment contracts – such as making the maintenance of a LinkedIn account part of the employee’s duties and ensuring that employees are obliged to surrender content on leaving employment - is also sensible until such time as we receive clearer guidance.
LinkedIn says it now has over 200 million members. The power of a good LinkedIn account is clearly not to be underestimated – but businesses must be prepared. While the use of social media such as LinkedIn is becoming essential to generate more business and contacts, the downside is that employers are more exposed to their confidential information and key contacts being leaked.
Sarah Burke (pictured) is a solicitor at law firm Thomas Eggar