Who has ownership of the contacts relating to an employee’s profile has been the subject of a legal argument over the last few months.
The case of Whitmar Publications Limited v Gamage has recently focused on this issue. In this case, Whitmar Publications sought an injunction against ex-employees who used the company's LinkedIn group contacts to market the launch of a rival business.
It has previously been held that direct dial telephone numbers and email addresses stored on employees work IT systems can be classified as confidential information, and as such are owned by the employer. The big difference with LinkedIn is that ownership of the account is personal to the account holder under LinkedIn's own terms and conditions and this data, of course, is stored on LinkedIn servers, not that of the employer's.
The High Court granted Whitmar Publications an injunction preventing former employees using the contacts on their LinkedIn profile from using the same to set up a rival business. However, the Court is yet to make a final ruling and there the law surrounding this point is still unclear. The current position appears to be as follows:
1. If the contacts are in the name of the employee’s personal account (i.e. the employees are not maintaining a LinkedIn group on behalf of the employer) the employee is likely to be in a stronger position.
2. If the contacts amount to private information gained during the employee’s employment, such as emails and direct dial telephone numbers, this could diminish the employee's position.
3. If the employee has compiled the employer’s contacts from uploaded email addresses at work, or the employer has in some other way provided the employee with business contacts and/or paid for a premium listing, a claim for ownership is likely to be more in the employer's favour.
It is recommended that both employees and employers consider the clauses within their employment contracts. Employees need to ensure that they are complying with any covenants within their contract while employers need to have the necessary safeguards in place to protect their business, its clients and its contacts in the ever growing social media world.
By Laura Wilson, trainee solicitor, employment law team
If you wish to seek advice on restrictive covenants and other clauses within contracts of employment, we have a dedicated specialist employment law team that can assist both employees and employers in ensuring that they are fully protected