Who Owns Your Firm’s Social Relationships and Why Should you Care?

We've never had a guest blogger before, but I felt that this content was so pertinent to so many small businesses who use LinkedIn as part of their marketing efforts that it was well worth passing on. So our thanks go to Alan Matthew at Miller Hendry Solicitors who has given us permission to reproduce his original article in full:

When it comes to social networks, there has been a tendency for professionals to dismiss the more personal social platform of Facebook, and dive straight into the more professional platform of LinkedIn.

A recent case, however, that keeping things purely “professional” has inadvertently blurred the lines for businesses when it comes to who owns the relationships and contact data cultivated on the world’s number one social network for business professionals.

LinkedIn may have replaced the old fashioned address book and database for keeping up with business contacts, but while many companies encourage employees to use the online social networking site to keep in touch with customers, few have realised the downside of such relationships when an employee moves on.

Company-held data, such as a customer database, clearly belongs to the company and can be easily protected against misuse, however in the LinkedIn era the boundaries are increasingly unclear, with many employees making personal contacts in the course of conducting their professional business. 

A recent case in the High Court tackled this thorny issue, and employers now have a clear route to tackle any misuse of contacts. “The LinkedIn Injunction”, as it is colloquially being referred to, has made it clear that employers may be able to act to secure contacts cultivated on behalf of the company in circumstances where they can show a legitimate proprietary interest in an employee’s LinkedIn profile. 

In those circumstances the company needs to be able to show that the loss or misuse of an employee’s profile may give rise to “irreparable harm that cannot be compensated” by any financial payment.

In the case of Whitmar Publications Limited v. Gamage and Others, publishing company Whitmar was granted a restraining injunction against three former employees who had set up in competition, alleging they did so whilst still employed.  Whitmar also alleged that contact information had been collected from members of LinkedIn groups that were maintained by Whitmar. 

The Court agreed that the LinkedIn groups involved constituted legitimate company property as one of the employees involved was responsible for maintaining these as part of their employment duties and using Whitmar’s computers, with a clear aim of promoting Whitmar’s business. 

It also accepted that the former employees had used contact information from the LinkedIn groups to send out promotional material about their new company. 

Granting the injunction to restrain the use of Whitmar’s confidential information, the ex-employees were also required to return confidential information and open up their computer systems for forensic inspection. 

So what action do you need to take? Here’s our top five tips in how to ensure your social media policies are kept up to date following this recent judgement: 

1. Assume that any LinkedIn account opened using an agreed company email address may subsequently belong to the company. LinkedIn accounts opened with a personal email will remain personal. Ensure this is clear to all employees.
2. All content on the profile, such as photographs and individual profile descriptions of an employee’s current role, should be cleared by the company prior to publication.
3. All job descriptions should clearly state that cultivating connections via LinkedIn is a part of business development for the company.
4. Employment contracts and social media policies need to specify that any LinkedIn activity by an employee, being conducted using LinkedIn on the employer’s behalf contribute to a database of proprietary trade information.
5. Employers need to be clear that compensation is being given for engaging in these business development activities as they take place during working hours.

And, finally, consider a more holistic approach to your social media activity. In light of this judgement, perhaps Twitter and Facebook have clearer personal and professional boundaries than once thought.