Confidentiality, Restrictive Covenants and Linkedin profiles

7 July 2013: Who Owns Your LinkedIn Profile?

Nowadays, LinkedIn profiles and other social media are often an essential part of everyday work.  Most or all of those contacts will have been built up over years of working for the employer.

Let’s say a sales agent leave his job, and updates his employment status to give details of his new employer. Your clients will see that and may then approach him in his new job. What can you do about it?  When an employee leaves employment, who owns the LinkedIn profile and contacts? Can the employer delete the LinkedIn account or demand that the contacts are removed?

Most employment contracts will have a confidential information clause, including potentially client lists. However social media contacts are not exactly confidential.

Penwell Publishing (UK) Ltd –v- Ornstein & Others 2007 held that whilst information such as head office addresses and contact numbers were in the public domain and could not be classed as confidential information, the direct dial numbers or email addresses of contacts should be treated as confidential information created in the course of employment and could belong to the employer. However, in that case the contact details were held on the employer’s Outlook system, rather than on the LinkedIn website.

In Hays Specialist Recruitment –v- Ions & Another 2008 (See Case Report) the Judge stated that an employer may authorise or even encourage employees to gather contact details on their LinkedIn accounts, and that contact information was gathered in the course of their employment and constituted confidential information which remained the property of the employer.

The Hays case suggests that any contact lists created in the course of employment should be returned. However employees may argue that they had their LinkedIn profile and contacts before the even joined the business. What do you do then?

Anecdotally, in one American case a company that took over a former employee’s LinkedIn account misappropriated her identity and right to publicity under Pennsylvania law, but did not commit identity theft. (Eagle v Eddcom).

Whilst case law on the subject develops, there are three things that you can do to protect your business.

1. Specify in the employment contract that the employer owns the social media profile or contact list created in the course of employment.
2. Have a policy setting out what procedure will be followed to take control of those social media contacts when employment ends.
3. Make sure that post termination restrictions include non-dealing in addition to non- solicitation, so that even if contacts approach your ex-employee, he can’t do business with them for a period anyway.