Social Media in the Workplace – The Problem with LinkedIn

If you ask any business-owner they will probably tell you that they actively encourage their staff to be on LinkedIn, promoting themselves and the business. LinkedIn is undeniably a great way for professionals to connect and network, however it can also pose significant risks for the employer who encourages its use.

Whilst LinkedIn may appear harmless and can be used as an excellent networking and business development tool, problems often occur as a result of its use. LinkedIn effectively creates a list of an employee’s business contacts including, potentially, clients or customers. This raises a number of questions including:-

• Is that contact information still confidential once customer details are made public in this way?
• If this is the only record of an employee’s business contacts, to whom does it belong?
• If an employee uses LinkedIn after employment to contact clients or suppliers, does that breach post-termination restraints aimed at non-solicitation?

There is, as yet, very little case law to answer these questions. The cases which have been reported provide some partial answers:-

• In PennWell Publishing (UK) Limited v Ornstein and others the employee, a journalist held an address list on Outlook on his employer’s computer system. It contained a mix of personal and business contacts.

The court decided that the address list belonged to the employer.

However, if the employee had kept a separate list of contacts and selectively copied those which he regarded as long-term or journalistic contacts (as opposed to those which would also be useful to the competing business he was setting up) and maintained them on his own computer, he would have been able to use them.

• Hays Specialist Recruitment (Holdings) Ltd v Ions [2008] related to a recruitment consultant for Hays recruitment who allegedly used his LinkedIn network to approach clients for his own rival agency.

In the first decision of its kind, the court ordered the employee to disclose his LinkedIn contacts.

The employee argued that his employer had consented to his use of LinkedIn and had in fact encouraged him to use it to connect with clients. The employee also argued that once an invitation on LinkedIn has been accepted by a contact, this information ceased to be confidential because it was then accessible by others on LinkedIn. The Court did not accept this and noted that even if the employer had given the employee authority to use client email addresses to invite clients to connect with him, it was unlikely that this authority extended to the use of such information beyond his employment with them.

• In WRN Ltd v Ayris the court considered whether the employer could claim that customer business cards and email addresses amounted to confidential information even though it advertised details of its customers on its website. The court decided that business cards collected by the employee in the course of his employment belonged to the company. However, the information contained in the Business Cards was not confidential or treated by the employer as confidential, because the information had been made available to the public by the employer itself by putting it on its own website

These cases, whilst indicative of the court’s views do not provide a satisfactory or certain answer to the question of ownership of LinkedIn contacts.

So what should you do?

For the time being, employers should impose controls on the use of LinkedIn, maintaining that contacts remain the property of the employer, imposing express obligations to return information stored on such media on termination of an employee’s contract of employment, and establishing independent databases.

Companies should ensure that they have appropriate and comprehensive social media policies covering the use of LinkedIn. In appropriate cases, restrictive covenants should also be used.

If you have any queries about confidential information, restrictive covenants or anything else raised in this article, please get in touch with Charlotte Braham on 01494 893 529.

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