Most businesses are likely to be familiar with LinkedIn, the social network preferred by professionals. For those that are not, LinkedIn is an online network allowing employees as well as employers to build a collection of professional contacts.
Where it is clear that a systematic list of contact details acquired by the employee in the course of employment is owned by the employer, the use of LinkedIn raises new challenges for lawyers concerning not only ownership of information and confidentiality, but also in relation to non-solicitation and non dealing clauses in employment contracts.
Employees Building their Professional Network
Employees are able to build professional networks thanks to their current employment, which raises the question of the ownership of the contact information held by employees on their account.
If an employee leaves a job, it is possible for him to keep the connections that he gained on LinkedIn through his previous position. In addition, the “open” online privacy settings allow all connected profiles to see each other’s connections.
However, the details of a previous employer’s clients should remain confidential if they were initially communicated to a limited group. Therefore the employer actually owns the details that the former employee has kept, although practically such a claim may be difficult to enforce.
The Law on Confidentiality of Contact Information
According to case-law, specifically Penwell Publishing (UK) Ltd v. Ornstein & Others , a database of direct confidential contact information acquired by the employees in the course of employment belongs to their employer.
The Copyright, Designs and Patents Act 1988, defines any collection of data as a database which will be owned by the employer when acquired by the employee in course of employment. But is a collection of LinkedIn contacts a database?
The employee could argue that the account being personal, he has a right to keep every contact acquired in course of his personal career.
The only existing case dealing directly with LinkedIn accounts did not rule on the ownership of contact lists but suggests that the collection would still belong to the employer, Hays Specialist Recruitment (Holdings) Ltd & Another v. Ions & Another . Nevertheless, the data actually also belongs to LinkedIn itself, a third party to the employment contract.
Non-solicitation and Non-dealing Clauses
Post termination covenants such as non-solicitation and non-dealing clauses face a new challenge from the growth of social networks such as LinkedIn.
In practical terms all an employer can do is to ask the departing employee to delete data acquired in course of their employment. He cannot control the personal LinkedIn database of the employee, which makes management of such business-sensitive data problematic.
Furthermore, non-solicitation clauses alone are generally regarded as a weak means to limit the activities of former employees post-termination. Non-dealing clauses are generally recommended as a more effective form of restrictive covenant. This is particularly so in the case of managing the use of digital networks such as LinkedIn.
Employers must put in clear terms in employment contracts that any contact detail acquired in course of employment does not belong to the employee and that such information is to be returned after termination of employment. Non-dealing and non-solicitation clauses should be incorporated as a means to enforce these conditions.
If you would like more information regarding the effect of social media on the employment relationship or other Employment matters, Rollingsons has experienced lawyers who can advise you. Please contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.