Did you know that your LinkedIn contacts or Twitter followers are more likely to “belong” to your employer than you if they are customers, employees, or vendors you did business with. In the last few years there have been a few court cases on this issue in the UK and US covering employee use of contacts in social media channels such as LinkedIn and Twitter.
In October 2011 a US company, PhoneDog Media, sued a former employee for taking 17,000 Twitter followers with him when he left the company. PhoneDog claimed that the followers constituted their client list which was confidential.
The BBC also had a similar problem last year when an employee with 60,000 Twitter followers moved to a rival TV channel and took all of her followers with her by simply renaming her twitter account.
Back in 2008 the High Court ordered a former employee of Hays (a UK recruitment firm) to hand over all of his LinkedIn contacts when he left the company to set up his own consulting business. Hays claimed that the contacts were confidential information of the company and that the former employer had breached the terms of his employment contract by using this information for business purposes.
Social Media Issues for Employers
The above decisions highlight the conflict between businesses encouraging their employees to use social networking websites for work and then having to deal with “ownership” or breach of confidentiality issues relating to contacts when the employment relationship comes to an end.
In order to avoid the above scenarios, both employers and employees need to consider “ownership” of social media contacts and agree on what should happen if an individual leaves the company.
Who owns your Profile or Account
This will depend upon who set up the account, why it was set up and who is paying for, and/or maintaining it.
Generally your LinkedIn profile or Twitter account is your own, even if your employer told you to create it – as it relates to an individual. It is “ownership” of the contacts that becomes complicated. For example, if your employer has asked you to set up a LinkedIn account for business and marketing purposes and you then use the database to download your business contacts before you leave it will be difficult to argue that the contacts are not confidential information of your employer.
Who owns Contacts or Followers
This is the wrong question to ask as no-one can “own” a contact. The question to ask is whether there are any restrictions imposed on you by your employer which will prevent you from using the contact once you leave.
For example if you have signed a contract of employment which contains non-solicitation or non-compete clauses these could prevent you from using the contacts stored in your profile, as they will be confidential information. Alternatively if you have signed a social media policy this will also restrict what you can and cannot do with your contacts after leaving the company.
In view of the uncertain legal status of social networking contacts it is advisable for companies to have employees sign a social media policy which sets out what use can be made of social media contacts once an employee leaves the company. Other measures that companies could consider taking are:
- to simply ban all use of social media sites such as Facebook, LinkedIn and Twitter;
- to ensure that relevant employees add all new LinkedIn contacts to the company’s CRM database;
- to include non-competition and non-solicitation clause in employment contracts or other agreements;
- to include social media clauses in all employment agreements.
By considering the risks and taking necessary measures to prevent these issues arising in the future employees and employers should be able to avoid costly litigation when key employees leave, potentially taking their contacts and followers with them.