When an individual makes contacts on LinkedIn during the course of their work, is it reasonable for their company to ask for those contacts when they leave?
This is a relatively new area of law but there has now been an interesting case (Whitmar Publications Ltd v Gamage and others) where the High Court has ruled that, in certain circumstances, the company owns the rights to the LinkedIn contacts where the LinkedIn account was ‘established in the course of employment and used to market and advance the employer’s activities’.
Naturally, it would be a matter of examining the evidence in each case.
Where there is no express agreement, the starting point is that the account belongs to the person who created it —they have the contractual relationship with the social media site and the passwords. The reality is, however, that even if the social media account is set up in the employee’s own name, the contacts on the employee’s network may well be both professional and personal.
In the Whitmar case one of the employees had operated a LinkedIn account on behalf of the Company; it was a part of her job. When she left her employment she refused to give the user name and password to the Company and then went on to approach the contacts, when trying to set up a business in competition. During the case she argued that this was perfectly acceptable as the LinkedIn account had been set up in her own name and not the Company’s.
The High Court held that in some situations the contact details can be considered the property of the Company, where the network was ‘established in the course of employment and used to market and advance the employer’s activities’. In this case the employees were ordered to deliver up their LinkedIn log-in and password details to Whitmar in order that the Company could access and amend the database.
The High Court didn’t go as far as to tell us what the Court would have decided if the LinkedIn account had been set up by an employee personally, rather than ‘established in the course of employment’ and where the employee shares the same contacts as the employer.
It is essential that every employer has includes in their IT policies a social media clause, Social Media Policy on its own and/ or a clause in their written statement of terms and conditions of employment which clearly states that all business contacts made or used during the course of employment will remain the property of the Company. The wording in such clauses should also state that upon termination of employment it is a contractual requirement that employees hand over their login details and passwords.
Without a doubt the laws relating to social media will develop rapidly and we must watch with great interest.