This is the text of some notes I prepared to support a talk that I gave recently on this subject.
Use of Social Media
Have policies for internet and social media use. Good policies will cover:
- Protecting confidential information – yours and your clients/candidates
- protecting the good name of your business: not posting anything unprofessional or inappropriate
- Observing laws – regulatory; harassment, discrimination, threats; defamation etc
- not making disparaging/derogatory comments about the company, its staff or clients or candidates
- Personal use of social media while at work: if this is permitted it should be on the basis that it does not interfere with employment responsibilities or productivity
- Unacceptable use (viewing inappropriate sites, running a private business)
- Monitoring of employees’ internet/social media use
- a reminder that breaches of the policy may give rise to disciplinary action
- a reminder that the internet does not forget
But remember that a policy is only as good as its enforcement. Make the policy widely available. Be consistent in its enforcement.
Who owns the contacts?
Your employee leaves. He has always been very active on LinkedIn (possibly with your encouragement) with several hundred contacts that he has built up during his time as your employee. Who owns those contacts? Can you prevent him from using them for the benefit of his new business/employer?
Type “who owns LinkedIn contacts” into your preferred search engine, and you will quickly see (a) that this is a hot topic and (b) that the courts have yet to give a definitive answer.
There has been one relevant High Court decision in recent years: Hays Specialist Recruitment (Holdings) Limited and Another v Ions and Another  EWHC 745
In this case the High Court ordered pre-action disclosure in relation to a potential claim by Hays that an ex-employee had, during the course of his employment, copied and retained confidential information which he used after leaving Hays. Hays alleged that the employee had deliberately migrated details of business contacts from a confidential database to his personal LinkedIn account by uploading those contacts so that LinkedIn could invite the contacts by e-mail to join his network. The employee argued that the migration was carried out with Hays’ consent – since it had encouraged him to join LinkedIn – and that, once the business contact had accepted the invitation, the information ceased to be confidential as it could be seen by all his contacts. The High Court held that Hays had reasonable grounds for considering that it might have a claim, and ordered pre-action disclosure of certain documents.
Although this was only a preliminary hearing, as opposed to a final judgment after hearing all the evidence on both sides, it shows that the Court recognises that LinkedIn can be abused by employees who are looking to harvest their employer’s confidential information for their own use. In this regard the principles are the same, whether the copying is into a Filofax, onto a memory stick, or to a LinkedIn account.
I was recently made aware of a similar case recently commenced in the High Court in which an interim injunction has been granted preventing use of LinkedIn contacts. My understanding is that that case is continuing. A trial will probably be several months away, that is if the case is not settled. As I understand it, the Claimant in that case is an employment business, and its contract with the (ex) employee contained terms to the following effect.
i. All use of online networking sites is solely for company and not personal use.
ii. All contacts and customer lists developed during the course of employment remain the property of the employer.
iii. All social media accounts used during the course of employment are property of the company.
iv. An undertaking by the employee to hand over details of user names and passwords for all social media accounts on leaving the company’s employment.
Until there is a High Court decision following a complete trial, I can only give you some educated guesswork. My own view is that provisions of this nature may be difficult to enforce in respect of a LinkedIn account created by the employee before commencing employment. Similarly if personal and company contacts are mixed. So, pending a definitive ruling, my recommendation is that by all means an employer should use provisions of the type described, but it really should not overlook the essential employer protection provisions of an employment contract:
- Prohibit copying, use or disclosure of employer’s confidential business information.
- A non-solicitation clause
- A non-dealing clause
These last two should be no broader in effect than is necessary for the reasonable protection of the employer’s business interests. Within that sentence lies another detailed discussion!