Linkedin, but what about Linkedout?

Matt Gingell explains how the use of the popular social media website by employees can be a double-edged sword for the business.

Linkedin, like other social media websites, is often regarded as an extremely useful tool for brand recognition and developing business for the employer. Many employees are encouraged to use Linkedin to build a network of contacts, join relevant groups and post out relevant information – all of which may well have a positive effect on growing the employer’s business.

But what happens when an employee leaves the business? Can the employee effectively walk into the sunset with a long list of the employer’s contacts, which may have been added to the employee’s personal contacts and friends?

The starting point is usually that in the absence of an express agreement the Linkedin account would belong to the person who created it and they would have the contractual relationship with the social media site and hold the relevant password. The contacts would be the private property of the account holder. However, in certain cases the contacts could actually be deemed to be the property of the employer. In determining the issue the Courts would consider whether the contacts were created during the course of the employment and whether the relationships arose through the business or outside the business.

In the case of Whitmar Publications Limited v Gamage and Others  the publishing company obtained an interim injunction in relation to Linkedin groups that one of three departing employees, setting up a rival business, had had responsibility for operating during her employment. The Court found that the Linkedin groups had been used as the source for distributing a press release after the employment had ended and granted an interim injunction providing the company with exclusive control and management of the particular Linkedin accounts. The Court indicated that key factors were the extent to which the group was created for the benefit of the employer and the extent to which the account was promoting the employer’s business. No final decision though was reached by the Court.

This area of law is rather ‘grey’ to say the least. Employers who encourage their employees to use Linkedin could though consider adopting measures to increase their protection including: setting up dedicated Linkedin accounts for employees during their employment to be used only for the employer’s purposes; the employer retaining the right of password access/control, allowing the employer to take control of the Linkedin account when the employee leaves; making it clear that the employee’s contacts/connections of the Linkedin account are confidential information belonging to the employer; copying Linkedin contacts over to the employer’s main database; and agreeing that the employee will be required to delete business contacts/connections made during the course of their employment from the Linkedin account on their departure.

These steps are by no means sure to work and are not without their problems. For example, an employer could instruct an employee to set up their LinkedIn account solely for work purposes and retain access to the password. The employee would be opening the account and would have to have the password to operate it. The employer's right of ownership would come down to arguments on agency. There would be practical problems too in handing over the account to the employer at the end of the employment including the issue, for instance, of what to do with any personal contacts that had been added.

There would also be the risk that the employee could change the password before departure. In terms of the option of simply requiring employees to delete business contacts on departure, this may be a better solution but there would invariably be disputes about whether a particular contact was a business one or a personal one. Supposing the employee had added a potential client who they had met at a breakfast seminar but who they had also happened to meet, socially, prior to then? What about a referrer who was also a friend of the employee?

It is also worth mentioning that messaging or posting to Linkedin contacts after the employee has left the business could breach any non-solicitation of client restrictions. Sometimes restrictive covenant clauses are drafted to include reference to a change of Linkedin status amounting to solicitation of clients.

This may or may not amount to ‘solicitation’ but in any event is this  practical given that presumably the employer would not wish the employee to retain their status and hold out that they are still being employed by the business? For senior employees, where appropriate, it may be sensible to consider some Linkedin safeguards alongside some suitably drafted restrictive covenants.

Some employers may take the view that the advantages of promoting LinkedIn within the workforce outweigh the risks of losing business when employees leave for fresh pastures.  Others may be more concerned about their employees’ 500 + connections. It cuts both ways.

Matt Gingell is a partner at law firm Gannons Solicitors which specialises in employment and commercial law

Start your day with The Independent, sign up for daily news emails
ebooks
ebooksA special investigation by Andy McSmith
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Money & Business

Recruitment Genius: Retirement Coordinator - Financial Services

Negotiable: Recruitment Genius: To provide a prompt, friendly and efficient se...

Recruitment Genius: Annuities / Pensions Administrator

Negotiable: Recruitment Genius: You will be the first point of contact for all...

Ashdown Group: HR, Payroll & Benefits Officer - Altrincham - up to £24,000.

£18000 - £24000 per annum + benefits: Ashdown Group: HR, Payroll & Benefits Of...

Ashdown Group: Learning and Development Programme Manager

£35000 - £38000 per annum + benefits : Ashdown Group: A highly successful, int...

Day In a Page

The saffron censorship that governs India: Why national pride and religious sentiment trump freedom of expression

The saffron censorship that governs India

Zareer Masani reveals why national pride and religious sentiment trump freedom of expression
Prince Charles' 'black spider' letters to be published 'within weeks'

Prince Charles' 'black spider' letters to be published 'within weeks'

Supreme Court rules Dominic Grieve's ministerial veto was invalid
Distressed Zayn Malik fans are cutting themselves - how did fandom get so dark?

How did fandom get so dark?

Grief over Zayn Malik's exit from One Direction seemed amusing until stories of mass 'cutting' emerged. Experts tell Gillian Orr the distress is real, and the girls need support
The galaxy collisions that shed light on unseen parallel Universe

The cosmic collisions that have shed light on unseen parallel Universe

Dark matter study gives scientists insight into mystery of space
The Swedes are adding a gender-neutral pronoun to their dictionary

Swedes introduce gender-neutral pronoun

Why, asks Simon Usborne, must English still struggle awkwardly with the likes of 's/he' and 'they'?
Disney's mega money-making formula: 'Human' remakes of cartoon classics are part of a lucrative, long-term creative plan

Disney's mega money-making formula

'Human' remakes of cartoon classics are part of a lucrative, long-term creative plan
Lobster has gone mainstream with supermarket bargains for £10 or less - but is it any good?

Lobster has gone mainstream

Anthea Gerrie, raised on meaty specimens from the waters around Maine, reveals how to cook up an affordable feast
Easter 2015: 14 best decorations

14 best Easter decorations

Get into the Easter spirit with our pick of accessories, ornaments and tableware
Paul Scholes column: Gareth Bale would be a perfect fit at Manchester United and could turn them into serious title contenders next season

Paul Scholes column

Gareth Bale would be a perfect fit at Manchester United and could turn them into serious title contenders next season
Inside the Kansas greenhouses where Monsanto is 'playing God' with the future of the planet

The future of GM

The greenhouses where Monsanto 'plays God' with the future of the planet
Britain's mild winters could be numbered: why global warming is leaving UK chillier

Britain's mild winters could be numbered

Gulf Stream is slowing down faster than ever, scientists say
Government gives £250,000 to Independent appeal

Government gives £250,000 to Independent appeal

Donation brings total raised by Homeless Veterans campaign to at least £1.25m
Oh dear, the most borrowed book at Bank of England library doesn't inspire confidence

The most borrowed book at Bank of England library? Oh dear

The book's fifth edition is used for Edexcel exams
Cowslips vs honeysuckle: The hunt for the UK’s favourite wildflower

Cowslips vs honeysuckle

It's the hunt for UK’s favourite wildflower
Child abuse scandal: Did a botched blackmail attempt by South African intelligence help Cyril Smith escape justice?

Did a botched blackmail attempt help Cyril Smith escape justice?

A fresh twist reveals the Liberal MP was targeted by the notorious South African intelligence agency Boss