Social media contact ownership is an issue of increasing concern for many employers due to the risks regarding breach of confidentiality and restrictive covenants. Ownership of social media contacts is not regulated by law and can be factually complicated especially where many employees come to their employer with long established existing business-focused social media accounts such as LinkedIn and then add their new employer’s logo to assist creating new contacts which are then further built up over time.
Breaches of employee confidentiality and of restrictive covenants (such as non-competition or non-solicitation clauses) have been long-standing concerns for many employers. However, in the digital workplace with the hugely increased use of social media by many employees, such risks have taken on a new dimension. Departing employees potentially have access to many hundreds of clients and business contacts through LinkedIn accounts outside of their employer’s direct control. Whilst many employers have rightly embraced the business benefits introduced by social media and have enthusiastically encouraged employee activity on business related social media in the interests of winning business, they have been slow to come to terms with the corresponding confidentiality and competitive risks.
Employers are advised to introduce strong contractual terms addressing ownership of social media contacts created during employment and restricting employee use of such contacts to compete with their employer. Such protection is best achieved through precise clauses in the contract of employment and a clear social media employment policy. Careful drafting should assert an employer’s contractual right to ownership of social media contacts created during employment as a cornerstone of any social media policy. Appropriate cross references should be made to confidentiality clauses and restrictive covenants in the contracts of employment. This serves to underline the employer’s view that any competing social media activity by employees could be a breach of contract.
There is no case law in Ireland directly dealing with the question of ownership of social media contacts such as LinkedIn created during employment but court decisions from other countries, particularly the UK, such as Hays v Ions (2008)
and Whitmar Publications Limited v Gamage and Others (2013)
give significant support to the notion that employers can control such matters through prudent contracts and policies. In the Whitmar case, the defendants were three former employees of Whitmar Publications who had left employment to set up a competing business. The plaintiff alleged, amongst other things, that its confidential information had been used unlawfully in setting up this competing business. It sought injunctive relief in the form of a springboard injunction from the High Court. One of the defendants had maintained a number of LinkedIn groups for her employer whilst she was working with the company which promoted the plaintiff’s business and contained details for customers and contacts of the employer. Upon leaving employment, the defendant refused to hand over the passwords or access details to these accounts. During the hearing it transpired that the LinkedIn groups were used by the defendants as the source of contact information for a press release advertising the new competing business. The defendant claimed that she had maintained the accounts as a “hobby” and that they were personal to her, and for that reason the information should be considered as belong to her. However, the Court rejected this argument. It determined that the defendant had maintained the accounts as part of her employment duties and that there was a strong case that the information was the property of, and confidential to, the plaintiff. Ultimately, the defendants were required to provide the plaintiff with exclusive access to the LinkedIn accounts. Unfortunately, the Court did not consider the position in respect of accounts that are personal accounts where employer has not required the employee to operate or maintain such accounts as part of their employment.
Employers should as a matter of standard include appropriate language in contracts of employment and introduce or update social media policies to deal with this important protection. Operational measures, where practicable, such as creation of new social media accounts on commencement of employment and the employer holding employee log in and password details can also go some way to reducing risk.
This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie