LinkedIn: Whose account is it?

With the rise and rise of social media, more and more employees are using sites like LinkedIn, Facebook and Twitter to build business relationships and generate more interest in/work for, the business they are employed by.

What happens to these accounts when an employee leaves a particular business?

The High Court, in the case of (Whitmar Publications Limited v Gamage [2013] EWHC 1881 (Ch)) has held that a former employer is able to exert a certain amount of control over an employee’s LinkedIn account after the termination of their employment in order to protect its business. This is so even in light of the fact that the LinkedIn user agreement is often entered in to by the employee personally.

Background
Prior to resigning from employment with Whitmar Publications Limited (Whitmar), three employees set up a competing business. When Whitmar became aware of this after the employees had left, it brought proceedings against the employees seeking, amongst other things, an interim injunction to restrain the use of the confidential information of Whitmar.

The employees were accused of a number of steps including trying to poach staff, misappropriating and using Whitmar’s confidential information and removing and copying over 400 business cards.

One employee had managed four LinkedIn groups on Whitmar’s behalf. The employee claimed these were “just a hobby” and personal to her.

This particular employee left Whitmar’s employment on 1 February 2013 and the LinkedIn groups appeared to have been used on 4 February 2013 as a source of contact details (email addresses) for a press release/invite to an event. The employee refused to provide Whitmar with the user name, password or any other access details for the groups.

The employees had not entered in to formal written contracts of employment with Whitmar.

Decision
The Court found that there were strong indications that the employees had been taking steps to compete against Whitmar for more than a year and the steps taken by the employees prior to their resignations crossed the line and ceased to be preparatory, becoming active competition.

On that basis, the employees were in breach of the duties owed to Whitmar of fidelity and good faith. The Court granted an injunction to prevent the employees from benefiting as a result of their earlier wrongdoing i.e. restraining the use of the confidential information. The Court also found that the employee who had previously managed the LinkedIn groups had duties as an employee to manage the LinkedIn accounts which were operated for Whitmar’s benefit to promote its business. This employee did not have a home computer and so had used her employer’s equipment to maintain the accounts and the Court ordered all of 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 prevent or inhibit Whitmar from accessing the LinkedIn groups.

Considerations
Impose clear duties on employees to promote the employer’s business via social media and add other contractual provisions that require employees to facilitate access post termination to social media accounts.

Employers that wish employees to use LinkedIn need to provide guidance and implementation policies for employees and should also review the post-termination restrictions in their contracts of employment.

If you would like to discuss this in more detail, without obligation, please get in touch with Greg Bullock on 01283 526204 or email greg.bullock@elselaw.co.uk.

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