Written by Martin Pratt
Employers seeking recovery of business cards on their employee’s Rolodex brought court actions in the twentieth century. It was probably inevitable then we would see similar claims in the twenty-first for control of LinkedIn accounts.
Last month, the High Court decided, for what is thought to be the first time, to issue an injunction ordering a former employee to hand over to her ex-employer control of LinkedIn Groups she administered on its behalf.
In the judgment, the court held that David Gamage, sales manager, Susan Wright, managing editor and Steven Crawley, production editor, left Whitmar Publications in January this year. Four months before they resigned from Whitmar the three had formed a new company, Earth Island, with the intent of competing.
The three resigned in January 2013. Prior to that, in the words of the judgment, “Wright was responsible for dealing with LinkedIn groups as part of her employment duties at Whitmar. Those groups operated for Whitmar’s benefit and promoted its business, and Wright used Whitmar’s computers to carry out her work on the LinkedIn groups”.
It stated: “On the 4th February 2013 Whitmar’s LinkedIn groups appear to have been used as the source of e-mail addresses for Earth Island’s press release in which a large number of individuals were invited to attend “an informal event” at a bar in Leicester Square.
The court held that this was improper use of Whitmar’s confidential information i.e. the contacts in the groups administered by Wright.
As a result the company was granted a “springboard” injunction to prevent the three ex-employees from using this data to launch their business into an unfair competitive advantage.
What is interesting is that the judgement held that, in these circumstances, where a LinkedIn group is owned and maintained by an employer, the court was willing to hold that contacts which appeared as an employee’s contact can be regarded as “belonging” to the employer, and can be protected as employer’s confidential information.
The judgement is short, and importantly it is not the final hearing of the matter, the injunction was granted pending the final trial.
Previously, though, an organisation looking to claim ownership of LinkedIn contacts would have run up against the site’s terms and conditions, which say that ownership of the account is personal to the account holder, not the employer.
So the decision is undoubtedly significant, but in many ways unclear. Although the High Court was prepared to grant Whitmar’s order, the judgement didn’t give a detailed analysis of how the LinkedIn accounts in question operated in practice, so it is unclear how far the courts will push this.
Where a LinkedIn group is largely controlled and maintained by an employee on behalf of an employer, the Whitmar case would suggest that the court is more able to find that contacts which appear on that account belong to the employer.
Employers who want to protect contacts on LinkedIn should take these steps to increase their chances of success in regaining control:
- Employees should be encouraged, as part of their role, to establish and maintain LinkedIn accounts with content with the firm’s “style”.
- Employees should be told to “brand” their profile as far as possible in a manner consistent with the employers website – using the same profile photo that appears there for example.
- Input text on behalf of the employee.
- Tell the employee what password to use.
- Introduce a contractual requirement that on leaving the employee will have to surrender content and change the password because the employee has been building a contacts list on behalf of the employee during working hours, and such lists belong to the employer.
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I am a partner in the employment law team and represent both individuals and employers, but specialise in acting for professionals such as public company directors, lawyers, hedge fund managers, accountants, MDs in investments banks, private equity principals and tech entrepreneurs, both as individuals leaving old employers and setting up or joining new enterprises. I advise senior individuals on new employment contracts and joining LLPs. On the employer side my expertise covers the employment aspects of mergers, acquisitions and outsourcing. My varied employer client base includes professional services firms, hedge funds, publishers, marketing agencies, charities, fitness studios and medical practices. I represent clients in all types of employment related disputes, involving matters like whistleblowing, discrimination, bonus claims, harassment, TUPE, High Court injunctions and unfair dismissal.