LinkedIn – My Contact or Your Contact? Jennifer Smith Associate in Employment at JMW Solicitors LLP

The World’s largest professional network Many employers actively encourage their employees to use sites like LinkedIn. LinkedIn's own terms and conditions provide that ownership of a LinkedIn user account remains with the individual. However, the English courts have disregarded these terms (to some extent) where confidential information is at stake.

Who owns the account? Under "membership" the terms state: "The profile you create on LinkedIn will become part of LinkedIn and except for the information that you license to us is owned by LinkedIn. However, between you and others, your account belongs to you. You agree to: Keep your password secure and confidential. Not permit others to use your account. Not use other's accounts. Not sell, trade, or transfer your LinkedIn account to another party. Not charge anyone for access to any portion of LinkedIn, or any information therein.

Whitmar Publications Limited v Gamage 4 months after resigning from Whitmar, three employees set up a competing business called Earth Island. Whitmar subsequently brought proceedings seeking, among other things, an interim injunction to restrain the use of its confidential information. The ex-employees were accused of misappropriating and using confidential information, including 450 business cards that were removed and copied during employment. One of the ex-employees, Ms Wright (the managing editor), had managed four LinkedIn groups on behalf of Whitmar.

Whitmar Publications Limited v Gamage continued Significantly, Ms Wright left Whitmar's employment on 1 February The groups appeared to have been used on 4 February 2013 as the source of addresses for an Earth Island press release inviting contacts to an informal event. Ms Wright refused to provide Whitmar with the user name, password or any other access details for the groups. No formal written contracts (and no post-termination restraints) were ever entered into.

Crossing the line Court found that there was a strong case that the employees were taking steps to compete against Whitmar for more than a year. The steps the employees took before their resignation crossed the line, ceasing to be preparatory and becoming active competition. As a result, the employees were in breach of the duties that they owed to their employer of fidelity and good faith. The court granted springboard relief, which prevented them from exploiting Whitmar's confidential information. The court also found that Ms Wright's duties as an employee included responsibility for dealing with the LinkedIn accounts, which were operated for Whitmar's benefit to promote its business. The court required the ex-employees to give Whitmar exclusive access management and control of the LinkedIn groups. It also ordered them not to access or do anything that would inhibit or prevent Whitmar from accessing the LinkedIn groups.

Any clearer? The merits were not explored in any depth and the facts appear to be relatively clear cut. Whitmar only begins to answer the many questions posed by employees' use of LinkedIn. For example, the position is unclear where an employee uses a personal LinkedIn account for mixed personal and business use.

Confidential Information

Database right? Post Termination restrictions? An employer may argue that the list of connections amounts to a database under the Copyright and Rights in Databases Regulations 1997 so that, if the employee tries to exploit that list post-termination, the database right is infringed. Has there been sufficient investment in obtaining, verifying, or presenting the contents of the database on the employee's profile in order for the database right to apply? During employment, an employer can rely on implied duties of good faith, and possibly fidelity, depending on the nature of the employee's role, to protect its business interests. These duties will not survive termination. Termination letters traditionally require employees not to hold themselves out as connected with their former employer post-termination. An employee will duly update his LinkedIn profile, advertising his change of scene to the world.

Hays Specialist Recruitment Holdings Ltd v Ions Mr Ions transferred contacts from his employer's database to his LinkedIn profile immediately before leaving the company. 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.

Practical Steps… Provide guidance on the use of the account - set out clear expectations on appropriate content and appropriate groups for the employee to join. Require employees to replicate contacts on the employer's own databases. Take steps to set up the employee's LinkedIn account (for example, by using the company's address, photo and text, and generating a password that is surrendered on termination).

Practical steps… Ensure any professional networking policy contains an express duty to promote the employer's business. Stipulates that the employee is to develop connections in furtherance of the employer's interests. Insert a clause in the employment contract assigning to the employer any proprietary interest in professional contacts added to an employee's LinkedIn account during the course of employment. Tailor restrictive covenants to deal specifically with LinkedIn. Consider imposing contractual provisions requiring disclosure/ deletion of all connections belonging to the employer.

Until further rulings, the position appears to be… If the contacts are in the name of your personal account you are likely to be in a stronger position. If the contacts amount to private information gained during your employment this could diminish your position. If you have compiled your contacts from uploaded addresses at work, or your employer has in some other way provided you with business contacts and/or paid for a premium listing, a claim for ownership is likely to be more in your employer's favour.