Who owns an employee’s LinkedIn account and contacts?
Many employers encourage their employees to use social media sites such as LinkedIn to create a presence, build up contacts and generate leads and referrals which can potentially bring in new business. But what happens when the employee leaves to work for a competitor and wants to take these contacts with them?
After all, the first thing your customer sees is an email from LinkedIn asking if you wish to congratulate your former employee on their new job!
In most cases, employers permit using LinkedIn during business hours. Some employers get involved with ensuring their employees maximise the marketing potential of the platform, often paying a subscription fee for enhanced ‘premium’ benefits.
In normal circumstances, when an employee leaves employment, they don’t take any confidential information with them. This could include client data or contact details, including those stored within, say, Outlook or the company’s CRM system, which is the employers’ property. In any case, once the employee left they wouldn’t have any physical access to this information.
But LinkedIn is different. It's a contract between the employee and LinkedIn, not the employer. Also, LinkedIn data is stored in the cloud and is accessible wherever internet access is available, and so the contacts stored in there will be accessed by the employee long after they’ve left employment.
So, what is the status of the information on LinkedIn? Who owns it when the employee leaves employment?
An employee who uses contacts from their LinkedIn database that were created during their time with a previous employer, or uses LinkedIn to trawl the work account, is likely to have to consider this to be the employer’s property rather than their own.
In a recent case of Hays Specialist Recruitment Holdings Ltd v Ions 2008 EWHC 745, the Court ordered that an employee disclose this information in proceedings, as the employee only transferred the work contacts to his LinkedIn account just before leaving employment.
It’s possible, although not yet tested, that the LinkedIn profile (if created by the employer or its marketing team, or controlled by the employer, or contains the employer's contacts) could amount to a proprietary interest of the employer, regardless of the contract between the employee and LinkedIn.
What does this mean for you?
Employers should make sure that they have good contractual terms about LinkedIn in respect of ownership of the content. They should also ensure they have good policies regarding the use of LinkedIn for work purposes, including the termination of that specific LinkedIn account, so that the employee has to set up a new one in the future.
It’s difficult to be certain as to how this will be compatible with LinkedIn’s own contract with the employee. But, at the moment at least, this is the best way for the employer to protect themselves until more guidance is given from the courts.
Our advice to employees is that you should read your employment contracts carefully, ensure you fully understand what you are entitled to, and that you stick to these agreed terms.
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