Left out of LinkedIn

Who owns LinkedIn contacts?

LinkedIn is the professional social network of choice for a reported 300million users. Its wide reach and importance to business has prompted discussion regarding the ownership of LinkedIn contacts made in the course of employment. Who owns them – the employer or the employee? Because of the varied nature of each employment relationship, and the associated use of LinkedIn, clear cut answers are in short supply.

Almost black and white

Whilst clarity is hard to find in this hotly debated topic, there are certain scenarios that may generate less dispute than others. For example:

1. In support of the principle that an employer owns the contacts made in the course of employment are situations where :

a. the employee makes contacts from personal LinkedIn accounts in their own name; or
b. the employee is not maintaining a LinkedIn group on behalf of the employer.

2. In support of the principle that an employee owns the contacts made in the course of employment are situations where:

a. the contacts were compiled by way of uploads from employer-provided email addresses;
b. the employer has in some other way been instrumental in providing the business contacts to the employee; or
c. the employer has paid for a premium LinkedIn listing that is used by the employee.

Fifty shades of grey

Debate arises when the employee uses a LinkedIn profile in the course of their employment, or at the direction of the employer. Questions arise such as:

Should the employee be able to utilise these contacts post-employment?
Can the employer invoke a restraint of trade by applying it to an ex-employee’s use of LinkedIn contacts?
Who owns the intellectual property in the LinkedIn contacts?

It has been suggested that email addresses and phone numbers stored in a database on company computer systems are likely to be classified as being owned by the employer. A unique aspect of LinkedIn, however, is that ownership of the account is personal to the account holder under the LinkedIn terms and conditions. Moreover, the data is stored on LinkedIn servers not those of the employer.

A LinkedIn injunction – United Kingdom

The issue came before the High Court in July 2013 in the case of Whitmar Publications Limited v Gamage¹. It is believed to be the first time a UK court has addressed the ownership status of LinkedIn contacts.

Whitmar sought an injunction against ex-employees who used the company’s LinkedIn group contacts, which one of the employees had maintained on behalf of the company, to subsequently market the launch of a rival business.

The court granted an interim injunction preventing the employees using the company’s contacts, saying this was a misuse of confidential information and a breach of the implied duty of good faith. This case is ‘one to watch’ as it proceeds to full trial later in the year.

A twitter example – United States

In California, Noah Kravitz (a marketing employee) built up a Twitter profile to 17,000 followers whilst working for PhoneDog (a mobile device news website). When he left the company he changed the name of the Twitter profile and kept the followers. PhoneDog sued Kravitz for trade secret misappropriation or misuse of a company trade secret (PhoneDog v. Kravitz²). PhoneDog claimed that the Twitter account, particularly the password to the account, was a trade secret, and that Kraviz’s continued use of the account to connect followers to a PhoneDog competitor was misappropriation.

The United States District Court for the Northern District of California held that the Twitter account and its password could constitute a trade secret under California law. The case ultimately settled. Details of the settlement are confidential, but Kravitz continues to use the Twitter handle @noahkravitz. Needless to say, the case demonstrates a foreseeable issue for the use of Twitter in the workplace and some of the resulting grey areas.

LinkedIn User Agreement

In relation to a LinkedIn Account, the LinkedIn User Agreement states that:

it ‘belongs to you’;
‘it cannot be sold, traded or transferred’; and
LinkedIn is in a ‘relationship with you’ (the user).

This shows that from LinkedIn’s perspective at least, the relationship exists between the individual and LinkedIn, rather than with any business or company. However, it is also interesting to note with regard to intellectual property that it goes on to state:

‘Any content or information you submit to us is at your own risk of loss. By providing content or information to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights).’

Vital steps in pursuit of black and white

Disputes arising from employment related use of social media will continue to surface. Amidst the confusion, it has become abundantly clear that there are ways to reduce the chance of grey areas in those disputes. Provisions covering social media ownership in employment contracts should be carefully drafted. A clear and visible social media policy should also be implemented outlining all rights and responsibilities of both parties.

¹Whitmar Publications Ltd v Gamage & Ors [2013] EWHC 1881 (Ch)

²PhoneDog, (Plaintiff) V Noah Kravitz, (Defendant) No. C 11-03474 MEJ United States District Court, N. D. California

@employee, you’re fired

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