Partner Article

LinkedIn - protecting your business interests

LinkedIn, with its 200 million users worldwide, is used widely by businesses and employees to increase their network and make new connections. Employers often now encourage their employees to promote their business through LinkedIn.

However, while doing so, consideration should be given to the legal and practical difficulties that can arise, particularly with departing employees.

Brand control

Image is an important consideration if employees are using LinkedIn for business use. If employees are encouraged or expected to use LinkedIn for networking and promoting an employer’s brand, the employer would be wise to set parameters as to how they use it. This will be important where there could be temptation on an employee’s part to publish material without first seeking guidance from their employer. This could be done informally but would be better through a formal policy.

Strictly private and confidential

Are contact lists on employees’ LinkedIn accounts confidential to the employer? In the case of Whitmar Publications Ltd v Gamage and others [2013] EWHC 1881 (Ch) the High Court granted an injunction over the use of LinkedIn group contacts which had been created in the course of an employee’s employment. A group of ex-employees, who had left Whitmar to set up a competing business, were accused of misusing Whitmar’s confidential information after their employment had terminated. One of the allegations was that the ex-employees were using LinkedIn groups which has previously been operated for Whitmar’s benefit and promotion, as their own and for the benefit of their new company. The court required the ex-employees to give Whitmar exclusive access management and control of the LinkedIn groups. It also ordered them not to access or do anything that would inhibit or prevent Whitmar from accessing the LinkedIn groups.

Although Whitmar only dealt with an application for interim injunctive relief, and made no final decision on the issue, it did suggest that LinkedIn contacts can constitute confidential information belonging to an employer.

On the question of protecting confidential information, employers might also want to consider who employees should be able to connect to. It may not always be the best thing for employees to connect to clients or customers as well as potential clients or customers if their privacy settings are not set up appropriately. Again policies and contractual provisions dealing with these issues would be preferable.

Whose account is it anyway?

Who owns an employee’s LinkedIn account? LinkedIn’s User Agreement is made purely between the individual user and Linkedin, and states that, ‘Even if you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement…’.

However, as Whitmar demonstrates, the English courts have disregarded these terms to some extent when looking at confidentiality. Although this case didn’t address the issue of ownership of the LinkedIn contacts directly, the granting of an injunction which would restrain ex-employees from using the LinkedIn group contacts they had administered and maintained on behalf of the business during their employment, shows it is possible for former employers to exert some control over employees’ LinkedIn accounts after termination of employment.

Penwell Publishing (UK) Ltd v Ornstien [2007] IRLR 700 addressed the issue of ownership of a contact list in an Outlook account. The list contained a large number of business contacts, compiled during the course of employment but also personal contacts. The High Court granted a permanent injunction preventing an employee from using the entire database, concluding that it belonged to the employer.

The answer to the question of ownership unfortunately remains unclear, but clarity over the following factors would put the employer in a stronger position when arguing over the issue:

• a network of contacts has been created in the course of an employee’s employment;
• the aim of the development of a network is it to benefit and promote the business of the employer; and
• the relationships with contacts has arisen through the employer.

Post and pre termination issues

Employers would be wise to consider or review their use of restrictive covenants, which are a useful way of protecting a business’ interests when an employment relationship comes to an end. If an employer is able to assert ownership over the employee’s LinkedIn connections, made during employment, any further dealings by the employee could be caught by a non-solicitation and/or non-dealing restrictive covenant.

If information held on LinkedIn accounts is considered to be confidential by employers, they will want confidentiality provisions in place in the contract of employment.

The contract of employment could also cover the use of passwords which have been generated by the employer, requiring an employee to surrender these upon termination of their employment.

An alternative option for employers would be to rely on a garden leave clause, if it is present in the contract, and impose a ban on updating a LinkedIn account during that time.

What can employers do?

Although the legal position is not entirely clear, if employers want their employees to create LinkedIn accounts, they can take certain steps to protect their business, such as:

• setting a standardised profile format that employees must use when using LinkedIn for business purposes (e.g. requiring that professional photos taken by the employer be used and imposing appropriate controls with regard to content);
• making it clear that building a LinkedIn profile is part of an employee’s job requirement;specifying from the outset that contacts remain the property of the business;
• training staff on the use of LinkedIn to provide guidance and help understanding; including contractual provisions concerning ownership and the return of or deletion of all LinkedIn connections belonging to the employer, on termination of employment;
• including confidentiality clauses in contracts of employment; and regulating and monitoring the use of social media through social media policies - these policies should make it clear that employees must have a clear line of separation between their personal social media accounts and their work-related accounts.

This article was written by Catherine McNulty and Ailsa Wilkie, solicitors in the employment team at Sintons in Newcastle

Catherine McNulty, employment specialist at Sintons – 0191 226 3801 catherine.mcnulty@sintons.co.uk. Ailsa Wilkie, employment specialist at Sintons – 0191 226 3705 ailsa.wilkie@sintons.co.uk

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