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3-10-2013

There has been much debate recently over who owns information or contact details stored on networking sites such as LinkedIn.

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Most employers endorse the use of LinkedIn as a means for employees to promote themselves and their employer’s business, but the downside is that it is a means by which an employee can then store business contacts, which they may then try and exploit when they leave their employer.

The issue of LinkedIn accounts was considered in the case of Whitmar Publications Ltd v Gamage [2013] EWHC 1881 (Ch). Here it was alleged that 3 former employees had misused confidential company information, in particular, a number of LinkedIn groups.

Miss X was responsible for dealing with the LinkedIn groups as part of her employment duties. When she left, she refused to provide her employer with the username, password and access details to the LinkedIn groups.

An interim injunction was granted by the Court which included an order that the former employees assist the employer so it had exclusive access and control of the LinkedIn groups.

The case, whilst helpful to employers, is not the last word on the matter. The injunction was an interim one. However, the High Court was satisfied that the former employees had set up LinkedIn groups with the intention of building up their own database of business contacts based on their employer’s confidential information. The former employees’ action had been extreme when looked at in the round. On the evidence, they had been taking active steps to compete with their employer for some time and whilst still employed by it which was a breach of the implied terms of fidelity.

It is not certain that the same outcome would be achieved where the employee had business contacts in a LinkedIn account maintained purely in their own name.

So what can employers do to protect their business contacts and confidential information?

  • Employers should include within the contract of employment provisions dealing with the ownership of confidential information.
  • It should be made clear that business contacts are maintained and developed as part of the employee’s duties at the cost of, and for the benefit of, the employer.
  • Appropriate post-termination restrictions should be included within the contract of employment dealing with issues of competition and solicitation of clients after the employment has ended.
  • The employer should impose express duties in the contract of employment that on termination the employee will remove from their LinkedIn account and any other external databases details of clients or business contacts (without retaining copies) and that they may be required to sign an undertaking confirming that they have done this.
  • The creation of LinkedIn Groups on behalf of the employer should be carefully controlled and it should be a contractual requirement that all such groups are maintained for the benefit of and remain the property of the employer.

Sarah Rushton

srushton@moonbeever.com

Tel: 0207 539 4147

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.

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