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12th September, 2013

Injunction granted to restrain ex-employees from using LinkedIn contacts


The rapid growth of LinkedIn has seen the establishment of a vital business tool, critically, however, there is little judicial guidance with regard to issues of ownership. The terms and conditions of LinkedIn state that ownership of the account is personal to the account holder, leading to disputes when an organisation attempts to assert ownership of employee’s LinkedIn contacts.

In the recent case of Whitmar Publications Limited v Gamage and Others [2013] EWHC 1881 CH; Judgment 4 July 2013, the High Court held that LinkedIn contacts can constitute confidential information belonging to an employer.

Previously to Whitmar, case law has provided some answers. In Hays Specialist Recruitment (Holdings) Ltd & Anor v Ions & Anor [2008] EWHC 745 the court held that contacts uploaded to personal LinkedIn accounts could constitute company property when employment terminated; and Pennwell Publishing (UK) Ltd v Ornstein [2007] IRLR 700 held that where an employee created and kept all his contacts on his employer’s computer system, that database of information belonged to the employer.

Whitmar’s further confirmation of the above saw the court grant injunctive relief to the Claimant employer. Mr Gamage, an ex-employee, attempted to further his competing business by using LinkedIn groups maintained by Whitmar. Although his activity was discovered by Whitmar, he and his co-defendants remained employed and continued the activity. The court granted a ‘springboard’ injunction to Whitmar to prevent the defendants from gaining a competitive advantage in their new business, based on their theft of confidential information and activity which included the use of LinkedIn contacts. The judgement confirms that contacts which appeared as the employee’s contacts will be found to belong to the employer with the same status as confidential information if the LinkedIn group is owned and maintained by the employer themselves, prohibiting misuse with regard to competition.

The decision in Whitmar is also consistent with the position in US law. Most recently it was held in the case of Eagle v Edcom that the court will look at the circumstances in which an employee’s LinkedIn profile is established and maintained, to determine the ownership of the LinkedIn account.

With this in mind, when creating a social media account an employer can take certain measures to give themselves optimum protection from potential court proceedings. These can include:
• using the Company address as the employees’ address;
• the input of all text;
• making building the LinkedIn profile with contacts a requirement of the employee’s role; and
• telling the employee what password to use.

It is important to note that for many businesses the difficulty in proving financial loss (especially where contacts are only prospective clients) and the costs of an injunction application mean litigation may not be cost-effective, so best practice would be to include the appropriate information in contracts of employment.

 

 



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